STATE PUBLIC INTEGRITY COMMISSION

                         Synopses of 1996 Opinions

                             Table of Contents

Personal or Private Interests

Interest in Non-Profit Organization 1

Restrictions on the Exercise of Official Authority 1

Restrictions on Representing Another's Interest before the State. 2

Regulating Activities Where Spouse Has Interest 2

Client Referral to Spouse's Private Enterprise 3

Agency Contracts with Brother-in-Law 4

Holding Stock Interest in Non-Profit Organization 5

Contract with Company Regulated by Agency 6

Decisions where a Daughter is Involved 7

Subcontracting with a Firm which has a State Contract 8

Stock in Private Enterprise 10

Stock Holdings in Publicly Traded Company 11

Accepting Anything of Monetary Value

Concurrent Employment 12

Local Government Employee Running for Elected Office 12

Running for Office While Serving as an Appointee to a State Board 13

Security Concerns 14

Employment with Companies Regulated by Agency 14

Employment With an Agency Contractor 15

Contracting with a State Agency 16

Consulting with facilities regulated by Employee's Agency 17

Teaching as Outside Employment for a Public School Teacher 20

Gifts, Payments, etc. 20

Scholarship 20

Tickets and Accommodations for an Athletic Event 21

Lunches from Vendors 21

Gift Certificate from Business Agent 23

Samples from Vendors 23

Payment to Honorary Officials 24

Payment of Expenses by Contractor 25

Reimbursement by a Non-Profit Foundation 26

Appearance of Impropriety 26

Confidential Information 26

Jurisdiction

Members of the General Assembly 27

Employees of Local Government 27

Judges, Prosecutors, and Local Government Police 27

State Regulatory Body 28

Criminal Law Complaint 30

Post-employment

Soliciting Former State Clients 31

Moot Issue 32

"Particular Facts" Required 32

Computer Consultant to State Agency 32

Computer Consulting with Former Agency 33

Computer Services Contract 33

Former Employee's Participation in Selecting His Replacement 35

From Social Work to Computers 35

Limited Waiver Granted on Post-Employment Restrictions 35

Managing Computer Technicians 36

Limits on Post-Employment where Company Contracts with Former Agency 37

Insufficient Facts 37

(A) The Company With a State Contract 37

(B) The Company without A State Contract 38

(C) Restrictions on Using Confidential Information 38

Contract with Former Agency, But Not Same Agency Section 39

What's a "Matter" under the Post-Employment Provision? 39

(A) Approach to Interpreting the "Matter" 40

(B) Interpreting "Confidential Information" 43

(C) Can computer analysts from a partner's firm be used? 46

PERSONAL OR PRIVATE INTERESTS

Interest in Non-Profit Organization

A Division Director was also a volunteer member of a private non-profit
organization. The organization asked the Director to consider chairing its
Board of Directors. The organization did not compensate the individual as a
volunteer member, and would not compensate her as a Board member. The Board
engaged in such activities as deciding if the organization would pursue
grants-in-aid, etc. Although most of its funding was from private
companies, it would qualify for State grants. It rewrote its bylaws to say
that if a State employee was on the Board, it would not ask for a grant
from that agency. It would seek grants from other agencies.

(A) Restrictions on the Exercise of Official Authority

The Code of Conduct restricts State employees, officers and honorary
officials from reviewing or disposing of matters where they have a personal
or private interest that would tend to impair their judgment in performing
official duties. 29 Del. C. § 5805(a)(1)(a). It also prohibits conduct that
would raise public suspicion that the individual is engaging in acts
violating the public trust and that would not reflect favorably on the
State. 29 Del. C. § 5806(a).

This Commission has held that where a State employee was on the Board of a
for-profit private enterprise, although the entity did not compensate her,
it would be inappropriate for her to review or dispose of the company's
contract application as part of her official duties because, as a minimum,
it might appear improper, which the Code prohibits. See, Commission Op. No.
95-24. "Private enterprise" includes "non-profit" entities. See, 29 Del. C.
§ 5804(8).

Here, the organization's bylaws barred it from seeking funds from a State
agency if an individual from that agency was on its Board. Thus, the
Division Director would not review or dispose of any funding request from
the organization because it would not seek funds from her agency, if she
accepted a Board position.

However, if she did not become a Board member, but remained a volunteer,
the bylaws did not bar the organization from seeking funds from her agency.
The Commission concluded that she probably could not review or dispose of
such request as part of her State duties. As a minimum, it might appear
that because of her personal interest as a member, she might give
preferential treatment to the organization if it requested funding. If such
situations arose, she was directed to consider whether she should: (1)
recuse herself; or (2) return to the Commission for an opinion on that
specific situation; or (3) request a waiver from the Commission. The
Commission may grant a waiver if it "determines that the literal
application of such prohibition in a particular case is not necessary to
achieve the public purposes of this chapter or would result in an undue
hardship on any employee, officer, official or state agency." 29 Del. C. §
5807(a).

(B) Restrictions on representing another's interest before the State.

The Code also restricts State employees, officers and honorary officials
from representing or assisting a private enterprise with respect to any
matter before the State agency with which the employee, officer or official
is associated by employment or appointment. 29 Del. C. § 5805(b).

The organization's bylaws made it clear that if the Division Director took
a Board position, it would not seek funds from her Department. Thus, it
appeared she would have no occasion to represent or assist the organization
before the agency where she worked, if she served on the Board.

However, if she were not on the Board but just a member, then the
organization's bylaws would permit it to seek funds from her agency. The
Commission concluded that it appeared that the Code restricted her from
assisting the private enterprise before her own agency, meaning that she
could not, e.g., help prepare the organization's funding request. See, 29
Del. C. § 5805(b)(1).

"State officers" are further restricted. They may not represent or assist
any private enterprise with respect to any matter before the State. 29 Del.
C. § 5805(b)(2). "State officers" are persons who must file a financial
disclosure form. 29 Del. C. § 5804 (12). Division directors are required to
file. 29 Del. C. § 5812(a)(15). Thus, as a "State officer," she would be
restricted from assisting or representing the organization, not only before
her agency, but before any State agency. For example, if the organization
wanted funds from an agency other than hers, the Commission concluded that
it appeared that the Code prohibited her from such things as preparing its
grant request as that would be assisting the private enterprise in seeking
funding from another agency. (Commission Op. No. 96-64).

Regulating Activities Where Spouse Has Interest

The Code of Conduct requires honorary State officials who have 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, to file with the Commission a written statement fully
disclosing the same. 29 Del. C. § 5806(d). An honorary State official
notified the Commission that he served on a regulatory agency which
regulated activities in which his spouse planned to engage. He said he
would recuse himself from decisions concerning his spouse.

Honorary State officials are restricted from reviewing and disposing of
matters before the State where they have a personal and private interest
which would tend to impair independence of judgment. 29 Del. C. §
5805(a)(1). One interest which, as a matter of law, tends to impair
independence of judgment is one where a close relative would receive a
greater benefit or detriment than members of the same class or group. 29
Del. C. § 5805(a)(2). "Close relative" is defined to include a spouse. 29
Del. C. § 5804(1). The Code also prohibits such persons from engaging in
conduct that would raise suspicion among the public that he is engaging in
acts violating the public trust and that would not reflect favorably upon
the State. 29 Del. C. § 5806(a).

Without deciding if the spouse would receive a benefit or detriment greater
than that received by others in the same class or group, the Commission
held that if the honorary State official decided matters concerning his
spouse, it could appear to the public that his judgment would be impaired,
and therefore, it was appropriate that he recuse himself on such matters.

The Commission noted that a separate statute governing this particular
regulatory body had specific provisions dealing with appointees having a
direct or indirect pecuniary interest in the regulated activity. As the
Commission had no jurisdiction to interpret that statute, it suggested the
individual discuss compliance with that statute with the appropriate
authority. The individual later notified the Commission that his spouse
would not engage in the regulated activity as long as he served on the
regulating agency. (Commission Op. No. 96-16).

Client Referral to Spouse's Private Enterprise

The Code permits State agencies to seek advisory opinions. 29 Del. C. §
5807(c). A State agency sought a decision on whether it could promote one
of its employees, without creating a conflict. If promoted, a private
enterprise owned by her husband was on the list of facilities to which
clients from her office could be referred. Her agency identified certain
internal procedures that were in place and asked if the promotion would
result in a conflict, even with the procedures in place.

State employees cannot review or dispose of matters if there is a personal
or private interest which tends to impair independence of judgment in
performing official duties with respect to that matter. 29 Del. C. §
5805(a)(1). One interest, which as a matter of law, tends to impair
judgment is where action or inaction by the employee would result in a
benefit or detriment for a close relative to a greater extent than for
others similarly situated. 29 Del. C. § 5805(a)(2). "Close relative"
includes a spouse. 29 Del. C. § 5804(8).

Here, federal and State laws prohibited State employees from referring
clients to a particular facility. The agency kept a list of all qualified
facilities and the client or the client's family selected the facility from
the list. Thus, the "matter" of selecting the facility was not a "matter"
over which the employee had any review or disposition authority. Further,
the agency had an individual who screened potential clients. After
reviewing the applications, the screener assigned the clients to employees.
It was agency procedure to assign employees to handle clients from a
particular facility. Clients who resided in or selected the husband's
facility would not be assigned to his spouse. Thus, the "matter" of
deciding eligibility for applicants at her husband's facility was not a
"matter" over which the employee had any review or disposition authority.
As the agency would not assign the employee to clients who lived at her
husband's facility, she would not evaluate the quality of care given at his
facility. Thus, the "matter" of deciding quality of care was not a "matter"
over which she had any review or decision making authority.

The Code also prohibits State employees from representing or assisting a
private enterprise with respect to matters before the agency with which
they are associated with by employment. 29 Del. C. § 5805(b)(1). Here, the
"matters" which would be of interest to the private enterprise would be
client eligibility, facility assignment, and client care. No input was
required from the private enterprise regarding client eligibility as it was
based on financial documents submitted by the potential client. No input
was required from the private enterprise regarding facility selection as
the client or the client's family selected the facility. Thus, no occasion
for the employee to represent or assist the private enterprise on "matters"
before the agency on client eligibility and facility assignment would
occur. The agency would not assign the employee to cases where the clients
lived at her husband's facility. Thus, she would have no information on the
"matter" of client care on which she could represent or assist the private
enterprise regarding the quality of care given those clients.

The agency said that one of its concerns was any appearance of impropriety
as the Code prohibits conduct which would raise suspicion among the public
that an employee is engaging in acts violating the public trust. 29 Del. C.
§ 5806(a). Here, the agency based client eligibility principally on
mathematical calculations involving income and net assets contained in
documents submitted by the applicant. A supervisor routinely reviews
decisions on eligibility through the relatively simple process of reviewing
mathematical calculations; not possible subjective statements by the
employee. Additionally, the employee would not decide eligibility or have
clients from her spouse's facility. Therefore, it was unlikely she could
approve or deny eligibility in a way to benefit her spouse's facility.
Additionally, the State employee has no control over the list or over which
facility has space available.

The Code also prohibits disclosing confidential information gained by
reason of public position or otherwise using such information for personal
gain or benefit. 29 Del. C. § 5806(g). The employee, like all agency
employees holding similar positions, had signed a confidentiality statement
on disclosure or use information about applicants and clients. The employee
said she was aware of and understood the prohibition, and never had, nor
would she, violate the prohibition. (Commission Op. No. 96-76).

Agency Contracts with Brother-in-Law

A State employee was the lead point of contact for his agency's procurement
activities. On occasion, requests for locksmiths went through his office.
As part of his duties, he obtained quotes from vendors, and where
appropriate sought public bids. His brother-in-law was a managing partner
for a locksmith company. As such, quotes from that firm could be solicited
and/or that company would submit bids when public notice and bidding were
required. The agency, believing a conflict might exist, had the
individual's supervisor solicit quotes or handle bids on locksmith needs.
It asked if such action was sufficient to avoid a conflict.

The Code restricts State employees from:

(1) reviewing or disposing of matters if a personal or private interest
tends to impair independent judgment in performing official duties; 29 Del.
C. § 5805(a); and

(2) engaging in conduct that would raise suspicion among the public that an
employee is acting in violation of the public trust. 29 Del. C. § 5806(a).

The Commission concluded that the agency had properly removed him from
participating in this procurement activity because if he called and
obtained quotes, his familial relationship might, as a minimum, tend to
impair judgment. Even if it did not, the public could suspect that he would
give his brother-in-law preferential treatment by: (1) calling him for a
quote and not calling others; and/or (2) passing quotes of other
contractors to his brother-in-law.

The Commission found that the procedures set up by the agency sufficiently
removed any suspicion that he was engaged in activities violating the
public trust because very few such requests came through his office; his
supervisor decided if the bid complied with State procurement rules; and an
individual from another section reviewed the contracts and judged the
supervisor's recommendation on the bases of costs, competence, past track
record, etc., of the contractor. (Commission Op. No. 96-42).

Holding Stock Interest in Non-Profit Organization

A State agency asked if it would raise any ethical issues if a non-profit
501(c)(3) private corporation were formed to promote the exchange and
dissemination of certain client information between the State and private
enterprises. According to the proposed bylaws, the private corporation
would issue stock to certain State officers, such as an elected official,
cabinet secretaries, and division directors. Representatives of private
enterprises, which the State regulated, would hold the majority of the
stock. The stock held would be voting stock and holders would, among other
things, vote to elect the board of directors, which might include these
State officers. Alternatively, it was asked if ethical issues could be
eliminated if the State, instead of the individuals, held the stock.

The bylaws provided that the entities which would make up the private
corporation would exchange certain client information. The State would be
expected to contribute information to the network based on the data it
collects on State clients. While other states have created such information
networks, they were created by statute, not by incorporation of a private
enterprise.

The Commission, by law, must base its advisory opinions on a particular
fact situation. 29 Del. C. § 5807(c). Here, a particular fact situation did
not yet exist as the legal entity of the private corporation had not been
created and no State officer had participated in any aspect of the
corporation's activities. However, to decide if such a private enterprise
model would be used, guidance was needed on whether conflicts could arise
from creating such a corporation. As the Commission may "provide assistance
to state agencies, employees and officials in administering the provisions
of this law," 29 Del. C. § 5809(10), this opinion is meant only to provide
assistance to the State agencies and State officers involved to aid them in
recognizing some areas where potential conflicts could arise. It is not
meant to prejudge any activities engaged in by such officers, should they
elect to be parties to this private enterprise. Further, it is not within
the Commission's authority to suggest how a network, such as proposed here,
should be legally structured, as that is a matter for the Attorney General.

With those limits in mind, having reviewed the bylaws and the purpose of
the corporate organization, the Commission had concerns that where State
officials join forces with private enterprises under these circumstances,
in a corporate activity, as a minimum, it raises issues about the
appearance of impropriety. Without detailing all of those concerns, the
Commission points out two issues. For example, the private corporation will
be made up, in part, of companies that the State regulates. It could appear
to the public that State officers might, in making regulatory decisions,
give preferential treatment to those companies with whom they have joined
forces in a private enterprise. See, 29 Del. C. § 5805(a)(1) and §
5805(b)(2)(State officers cannot review or dispose of matters in which they
have a personal or private interest that tends to impair judgment and State
officers cannot represent or assist a private enterprise in matters pending
before the State). It also may appear to the public that the State officers
are obtaining confidential information in their official capacity and
passing that information to private companies. See, 29 Del. C. § 5806(f)
and (g)(regarding improper disclosure or use of confidential information
gained by reason of public position).

If the State held the stock, as opposed to the individual officers, some
State official would still have to make voting decisions, and perform other
functions and responsibilities as a stock holder. Such official may
encounter the same appearance problems. Accordingly, the Commission does
not see where giving the stock to the State would necessarily eliminate
some of the ethical issues that might arise.

The Commission has some concerns about whether State officials may, within
the scope of their employment, enter such arrangement, regardless of any
ethical issues. However, that question is for the Attorney General's
office, not this Commission. (Commission Op. No. 96-56).

Contract with Company Regulated by Agency

Before being appointed to a State agency, an individual had a private
contract to provide maintenance for a private enterprise. For a number of
years after his appointment, the company was not subject to the agency's
regulations. Because of a change in business operations, the company became
subject to the agency's regulatory authority. The individual notified the
Commission that he would recuse himself from decisions regarding the
company. He asked if he needed to take additional steps to avoid any
conflicts of interest.

Because the individual's appointed position resulted in more than $5,000 a
year in compensation, he was considered a "State employee," under the Code
of Conduct. See , 29 Del. C. § 5804(11)(a)(2).

State employees are restricted from participating on behalf of the State in
the review or disposition of any matter pending before the State in which
they have a personal or private interest. A personal or private interest in
a matter is an interest which tends to impair a person's independence of
judgment in performing duties with respect to that matter. 29 Del. C. §
5805(a)(1).

The Code also prohibits accepting outside employment if such acceptance
would result in: (1) impairment of independence of judgment; (2) official
decisions outside official channels; (3) preferential treatment to any
person; or (4) any adverse effect on the public's confidence in the
integrity of the government. 29 Del. C. § 5806(b).

The Code also prohibits employees from pursuing a course of conduct which
will raise suspicion among the public that they are engaging in acts which
violate the public trust and which will reflect unfavorably upon the State.
29 Del. C. § 5806(a).

As a minimum, it may appear that participation in regulatory decisions of a
company with which he did business would raise suspicion among the public
that his judgment may be impaired and that he might give preferential
treatment to the company. Accordingly, his decision to recuse himself from
matters affecting the company was appropriate.

The question of whether he should take further action was viewed in light
of the other activities regulated by the agency. The agency had specific
areas to regulate and decisions by it in areas of regulation outside the
area which applied to this company, would not impact on the company.
Accordingly, the Commission found no violation of the Code as long as he
recused himself from decisions pertaining to the company. This would
preclude him from reviewing or disposing of matters in which arguably he
had a financial interest and would preclude any preferential treatment to
the company in making official decisions.

As far as any appearance of impropriety, the Commission emphasized that he
had a long standing contract with the company to perform the maintenance
work before the company was ever regulated; he was performing the contract
before his appointment; and his company was asked to continue to perform
the work to give continuity to the plant maintenance. Thus, it is clear
that any financial benefit received through the contract was not the result
of his appointment.

The Commission concluded he need not recuse himself from other regulatory
decisions, as those decisions would not impact on the regulatory decisions
pertaining to the company. (Commission Op. No. 96-53).

Decisions where a Daughter is Involved

State employees may not review or dispose of State matters if they have a
personal or private interest which tends to impair their independent
judgment in performing duties with respect to those matters. 29 Del. C. §
5805(a)(1). A person's judgment tends to be impaired when any action or
inaction on a matter would result in a financial benefit or detriment to a
close relative to a greater extent than such benefit or detriment would
accrue to others members of the same class or group of persons. 29 Del. C.
§ 5805(a)(2)(a). "Close relative" includes children. 29 Del. C. § 5804(1).

A State employee was asked to review an existing agency contract for
expansion. The contract dealt with scheduling and testing. The agency's
senior management decided to expand the contract because legislative
changes dictated that the work be assumed by the existing contractor to
free up agency staff. Persons at a higher level than the employee approved
the negotiations. After the contract was re-negotiated, the contractor
announced plans to hire additional workers. The announcement reflected the
specific hiring criteria and the particular background needed. The
employee's daughter, among other applicants, had the particular background
and applied for a job.

The Commission found no violation of 29 Del. C. § 5805(a) as the State
employee had no foreknowledge that her daughter would be considered for a
position when the negotiations were occurring. Therefore, her judgment
would not have been impaired because of her lack of knowledge. Also, no
evidence suggested that her contract negotiations benefitted her daughter
more than other members of the same class or group of persons. The
contractor established the hiring criteria and hired other similarly
qualified applicants. No facts suggested that the daughter received any
greater benefit than that offered to other applicants.

The daughter would not work for the contractor in the same area as her
mother and her mother had no responsibilities in the area of the subject
matter (scheduling/testing) of the contract. (Commission Op. No. 96-44
(I)).

Subcontracting with a Firm which has a State Contract

A State agency solicited lease proposals for space to house several State
agencies. Representatives from each agency which would use the space were
on the Site Selection Committee. The committee narrowed the proposals to
three candidate firms. One candidate firm intended to subcontract part of
the work which would be required to prepare the site. An appointee to one
of the State agencies which would be housed in the property owned the firm
which would subcontract. Before the Site Selection Committee allowed the
three candidates to present their proposals, the Commission was asked if it
would violate the Code of Conduct if the appointee's firm subcontracted.

Under the Code of Conduct, "State employee" includes any person "who serves
as an appointed member, trustee, director of the like of any State agency
and who receives or reasonably expects to receive more than $5,000 in
compensation for such service in a calendar year (not including
reimbursement of expenses." 29 Del. C. § 5804(11)(a). As the individual who
owned the subcontracting firm was appointed by the Governor and received a
salary of more than $5,000 per year, for purposes of the Code of Conduct,
he was a "State employee."

State employees may not:

(1) Review or dispose of matters pending before the State where there is a
personal or private interest that tends to impair independence of judgment.
29 Del. C. § 5805(a)(1). One interest which tends to impair judgment is
when action or inaction on the matter would result in a financial benefit
or detriment to accrue to the person or private enterprise to a lesser or
greater extent than others in the same class or group. 29 Del. C. § 5805
(a)(2).

The matter to be reviewed and disposed of was a leasing contract. The
appointee's official duties did not include any aspect of leasing
contracts. His duties were to decide regulatory matters. His agency did not
regulate either his firm or the candidate firm. Also, he was not on the
Site Selection Committee so he would not review or dispose of the lease.
While his company might experience a financial benefit if it subcontracted,
the financial benefit would not result from any action or inaction by him
in his official capacity. Also, he would recuse himself from any discussion
with his agency regarding the leasing decision. Thus, the Commission found
that if his firm subcontracted as part of the candidate's team, it would
not violate 29 Del. C. § 5805(a)(1) and (2).

(2) 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).

Assuming the Site Selection Committee was a "State agency," it was not the
State agency to which he was appointed. As he was not on the Site Selection
Committee; would not discuss the matter with his agency, and would not
participate in any presentation to the committee by the candidate firm, it
would not violate 29 Del. C. § 5805(b), if his firm were a subcontractor.

(3) Enter any State contract for more than $2,000 (other than employment)
unless the contract was made or let after public notice and competitive
bidding. 29 Del. C. § 5805(c).

Although the law does not require solicitation for leasing proposals be
subject to public notice and competitive bidding, the leasing contract was,
in fact, advertised. Thus, there appeared to be no violation of 29 Del. C.
§ 5805(c).

(4) Engage in conduct that would raise public suspicion that the individual
is engaging in acts violating the public trust. 29 Del. C. § 5806(a).

Regarding whether his participation as a subcontractor would raise
suspicion among the public that he was engaging in activities violating the
public trust, such concern was diminished because: (1) the proposals were
subject to public notice and bidding; (2) the activities raised no
technical violations of the statute; (3) he was not on the Site Selection
Committee; (4) he would not personally appear or participate in the
candidate firm's presentation to the selection committee; and (5) he would
not discuss the leasing arrangement with his agency. Also, if his firm
subcontracted, the work was only about 5% of the overall project costs.
Other than the overall costs proposed, the primary criteria in selecting a
candidate focused on site location, not the type of work his firm would
subcontract to perform. Thus, it did not appear that the work of the
subcontractor would affect the selection, regardless of the contractor.
This fact also diminished any appearance that having his firm subcontract
as part of one contractor's team would influence the selection of the
contractor.

If his firm participated in the contract, it was not anticipated that his
State agency would have any special needs from the subcontractor which
would require him to discuss those needs with his agency. However, the Site
Selection Committee had not decided which candidate would receive the
contract. Even assuming that the candidate firm which wished to use his
firm as a subcontractor were selected, and assuming his firm was kept as
its subcontractor, the need for discussions and decisions between the
individual in his private capacity and his agency were remote and
speculative. As the Commission must render advisory opinions based only on
a "particular fact situation," 29 Del. C. § 5807(c), it concluded that it
was premature to rule on whether such discussions and decisions, if they
needed to occur, would violate the Code of Conduct. The Commission advised
the parties that they could seek an opinion should such situation arise.
(Commission Op. No. 96-51).

Stock in Private Enterprise

A State officer owned a single share of stock in a small Delaware
corporation, valued at approximately $600. The stock holding was not for
investment purposes, but a "gesture of community support." The private
corporation rented property it owned to a second corporation in which it
held stock. The second corporation had a sublease agreement with the State.
The private corporation did not receive any proceeds from the sublease
agreement. The State officer was responsible for selecting someone to
insure that the second corporation complied with its sublease agreement. As
a State officer, he had no decision making authority over the corporation
in which he held stock, and the amount of stock did not constitute a
"financial interest" as defined by the Code of Conduct. However, he asked
if holding stock in the first corporation would violate the Code of Conduct
because he selected the person who would insure that the second corporation
complied with the sublease.

The Code prohibits State officers from reviewing and disposing of matters
in which they have a personal or private interest which tends to impair
independent judgment in performing official duties with respect to that
matter. 29 Del. C. § 5805(a)(1). As a matter of law, a person has an
interest which tends to impair judgment if they have a "financial interest"
in a private enterprise and any action or inaction would affect that
interest to a lesser or greater extent than like enterprises or other
interests in the same enterprise. 29 Del. C. § 5805(a)(2)(b). A person has
a "financial interest" if he: (a) has a legal or equitable ownership
interest of more than 10%; (b) expects to receive more than $5,000 in
income during the year as an employee, officer, director, trustee or
independent contractor; or (c) is a creditor in an amount equal to 10% or
more of the debt of that enterprise. 29 Del. C. § 5804(4). Here, the
individual's ownership interest was less than 10%; he received no income
from the corporation; and he was not a creditor of the corporation.

While his stock holding did not meet the statutory definition of "financial
interest," the Commission pointed to a Delaware Superior Court decision in
which the Court relied only on the general prohibition against having an
interest which tends to impair judgment, 29 Del. C. § 5805(a)(1) without
any reference to the "financial interest" provision, 29 Del. C. §
5805(a)(2)(b), for an assumption that an individual had a conflict of
interest. Beebe Medical Center v. Certificate of Need Appeals Board, Del.
Super., C.A. No. 94A-01-004, Terry, J. (June 30, 1995), aff'd, Del. Supr.,
No. 304, Veasey, J. (January 29, 1996). The Code also prohibits engaging in
conduct which could raise suspicion that they are violating the public
trust. 29 Del. C. § 5806(a).

The Commission said that although the $600 stock did not constitute a
"financial interest," the question was whether the holdings might create a
perception of impropriety. The Commission held that under these facts, it
found no justifiable imperception because: (1) the holding was small; (2)
it was fully disclosed; (3) the basis of the holding was a "gesture of
public support," as opposed to an investment opportunity; (4) he would
recuse himself from reviewing decisions on whether the second corporation
was complying with the sublease; and (5) the first corporation received no
proceeds from the sublease agreement with the State. (Commission Op. No.
96-61).

Stock Holdings in Publicly Traded Company

As part of his State duties, a State officer was to find a company to
fulfill a service contract. The service needed was highly technical and the
State officer "did a lot of research," and "acquired a lot of knowledge,"
about companies which provided the highly technical service. Specifically,
only three companies were the primary providers, and they had a substantial
portion of the world market. He recommended that one of the companies
provide equipment and phase-in services at more than $1 million. After the
contract was issued, he learned that the company was making a public
offering of its stock. He concluded that he could use his knowledge about
the company without any conflict because his investment was less than the
amount defined by the Code of Conduct as a "financial interest." He and his
wife bought 340 of the 2 million shares offered.

He was to routinely monitor the contract for compliance and could decide if
his agency needed additional services. If more services were needed, his
recommendation "would carry a lot of weight." He also said other Delaware
agencies and other jurisdictions might seek his recommendation on the
company's ability to fulfill the contract. He said that although any sale
would make the company look better, he did not think his decisions would
affect the stock price. However, he recognized that his opinion could have
an impact. He said that if the Commission found a violation he could
delegate his decision making authority or liquidate the investment.

His investment was not enough to be a "financial interest" as defined by
the Code. See, 29 Del. C. § 5804(5). However, the Commission noted other
provisions which affected its decision.

First, the code prohibits reviewing or disposing of matters pending before
the State where the individual has a personal or private interest which
tends to impair judgment with respect to that matter. 29 Del. C. §
5805(a)(1). The Commission pointed out that the Delaware Superior Court
interpreted the provision as requiring recusal of a decision maker on
matters pending before the State where a private company employed the
individual and the company was seeking a decision from his agency. The
Court did not discuss the amount of any "financial interest." See, Beebe
Medical Center v. Certificate of Need Appeals Board, Del. Super., C.A. No.
94A-01-004, Terry J. (June 30, 1995), aff'd, Del. Supr., No. 304, Veasey,
J. (January 29, 1996).

Second, the Code restricts State employees from having "any interest in any
private enterprise . . . which is in substantial conflict with the proper
performance his duties." 29 Del. C. § 5806(b)(emphasis added).

Third, the Code prohibits conduct which could raise suspicion that the
individual is violating the public trust. 29 Del. C. § 5806(a). The
Commission noted that in a prior decision it said: "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.' Actual misconduct is not required; only
a showing that a course of conduct could 'raise suspicion' that the conduct
reflects unfavorably." Commission Op. No. 92-11.

The Commission concluded that his investment created perception and
possible conflict of interest problems because: (1) only three major
companies provided the service; (2) the service was in a fast developing
field; (2) this limited competitiveness was to be weighed against his
decision making authority; (3) he would be routinely deciding if the
equipment worked properly; (4) he would be the one to recommend additional
services for his agency; (5) his decision making authority carried "a lot
of weight" not only with his own agency but other Delaware agencies, and
even other jurisdictions; and (6) no statute or rule prevented him from
delegating his decision making authority. (Commission Op. No. 96-85).

ACCEPTING ANYTHING OF MONETARY VALUE

Concurrent Employment

Local Government Employee Running for Elected Office

An individual who worked for a city government was subject to the State
Code of Conduct because it applies to local governments that have not
adopted their own Code. 68 Del. Laws, c. 433 § 1. Besides holding his
government position, he wished to run for office in a different city. The
Commission referred the individual to its prior holding that no specific
Code of Conduct provision prohibits running for elective office while
employed by the government. Commission Op. No. 92-2.

As this individual was a law enforcement officer, he also was referred to
the Police Officers' Bill of Rights regarding participating in political
activities. See, 11 Del. C. § 9200(a). The restriction against police
officers engaging in political activity while on duty or when acting in an
official capacity or while in uniform was similar to the statute governing
political activities by State Merit employees, which prevents them from
engaging in political activity or soliciting political contributions,
assessment or subscriptions during hours of employment or while engaged in
State business. See, 29 Del. C. § 5954. Although the Commission has no
jurisdiction over those laws, it noted that those restrictions were
consistent with the Commission's interpretation of Code of Conduct
provisions which preclude acts appearing to be improper and acts in
substantial conflict with properly performing public duties under the
concurrent employment provision. See, 29 Del. C. § 5806(a) and (b).

As the individual had not been elected to office, the Commission found that
the issue of whether being an elected official would create an actual
conflict with his government employment was not ripe for decision. It
advised the individual that if elected, he should be aware of the
restrictions on holding concurrent employment. See, 29 Del. C. § 5806(b).

He was advised that if elected, he would be subject to the State Code of
Conduct not only in his employed position, but also in his elected
position. It said if a particular fact situation arose after being elected,
he could return to the Commission for an opinion on a particular fact
situation. (Commission Op. No. 96-02). (Merit Employees, See, 29 Del. C. §
5954 & AG Op. No. 78-016).

NOTE: The Delaware Supreme Court, in a 1998 advisory opinion interpreting
the State Constitution, held that a State trooper must resign as a State
trooper if elected to the General Assembly as he would be exercising both
legislative powers (enacting State laws) and executive powers (enforcing
State laws) and the combination would be "antithetical to Separate of
powers between the three branches of government." In Re: Request of the
Governor for an Advisory Opinion, Del. Supr., 722 A.2d 307 (1998).

Running for Elected Office While Serving as an Appointee to a State Board

An individual who was an appointee to a State Board wanted to run for
either a city or county elected position. He had not decided which one.

The Commission referred the individual to its earlier rulings which held
the Code of Conduct does not specifically prohibit running for elective
office. (Commission Op. Nos. 92-2 and 96-02). However, in those opinions,
the Commission noted that the Code of Conduct does preclude acts appearing
to be improper and acts in substantial conflict with properly performing
public duties. 29 Del. C. § 5806(a) and (b). Viewing those provisions in
the context of running for elective office, the Commission held that
individuals seeking political office should not engage in political
activities or solicit any political contribution, assessment or
subscriptions during hours of State employment or while engaged in State
business. See, Commission Op. No. 96-02.

It noted that apart from the Code of Conduct, other statutes prohibit
certain persons from being a candidate or holding elective office. For
example, Public Integrity Commission members cannot be elected or appointed
to U.S. or State office or be a candidate for those offices, 29 Del. C. §
5808(b); the State Election Commissioner may not hold or be a candidate for
office, 15 Del. C. § 301, etc. The Commission pointed to those provisions
to alert the individual to check beyond the Code of Conduct for other
statutes that might affect his decision to run for office.

The Commission held that it could not rule on whether any conflict would be
raised if the individual were actually elected because it can render
decisions based only on particular facts. 29 Del. C. § 5807(c). Here, the
individual had not even decided which elected office he intended to seek.
Assuming he was elected, it would still need a particular fact situation to
decide if the concurrent employment would violate the prohibition against
holding other employment where it may result in: (1) impairment of
independence of judgment in exercising official duties; (2) undertaking to
give preferential treatment to any person; (3) making a governmental
decision 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). Without specific facts, the Commission would not speculate on
whether holding the concurrent positions would violate the Code.

If the individual were elected, as an elected official he would be subject
to the State Code of Conduct, unless the particular local government had
adopted its own code of Conduct. See, 68 Del. Laws, c. 433 § 1. Only four
local governments have adopted their own codes of conduct--Lewes, Newark,
Wilmington and New Castle County. Also, as a State official, he would
remain subject to the State Code of Conduct as a result of that position.

The Commission advised the individual that if elected and a specific
situation arose, he should feel free to seek a decision from the Commission
based on that specific situation. (Commission Op. No. 96-22). (Merit
Employees, See, 29 Del. C. § 5954 & AG Op. No. 78-016).

Security Concerns

An agency asked if it would violate the Code of Conduct for one of its
employees to accept part-time employment which would result in the employee
having access to the agency's offices after duty hours. The agency was
concerned that a security problem could occur, although no such incident
had occurred. Further, the agency said its concern was not specifically
about this individual. Rather, it resulted from a risk analysis
determination that there could be a problem in granting agency employees
access to areas where confidential information was retained as it could set
precedent and create a problem.

The Code prohibits concurrent employment if it would result in: (1)
impaired independence of judgment; (2) preferential treatment to any
person; (3) government decisions outside official channels; or (4) any
adverse effect on the public's confidence in the integrity of the
government. 29 Del. C. § 5806(b).

The Commission issues advisory opinions on a particular fact situation. 29
Del. C. § 5807(c). As the agency concerns were not related to this
individual and no security incident had occurred, the Commission held that
the matter was not ripe for decision.

Further, the agency was charged by the federal government with risk
analysis for security problems based on federal statutes and/or
regulations. The Commission's jurisdiction is limited to implementing and
administering the Code of Conduct. See , 29 Del. C. § 5808(a). Thus, it has
no jurisdiction over federal provisions relating to security matters.
(Commission Op. No. 96-09).

Employment with Companies Regulated by Agency

Employees of a State agency were offered temporary jobs by a company
regulated by their agency. Their State position required them to enforce
regulations against the company, when necessary. While performing the
temporary job, they could observe whether the company was violating the
regulations.

The Code prohibits outside employment if it may result in: (1) impaired
independence of judgment in performing official duties; (2) preferential
treatment of any person; (3) official decisions outside official channels;
or (4) any adverse impact on the public's confidence in the integrity of
the government of the State. 29 Del. C. § 5806(b).

Because they would be paid by a company for which they enforced State
regulations and their off-duty work for the company could result in
observations that State regulations were being violated, the Commission
concluded that accepting the outside employment could adversely effect the
public's confidence in the integrity of government because the public might
assume the employees would give preferential treatment to the outside
employer or assume that the employees' judgment could be impaired because
of the conflict between performing duties for an employer against whom they
must enforce State regulations. (Commission Op. No. 96-41).

Employment With an Agency Contractor

A company which contracted with a State agency was unable to fulfill the
contract in three areas because it did not have the necessary expertise.
The agency asked another agency if the contractor could hire some of its
employees to provide the expertise. They would provide these services to
the contractor during their off-duty hours. If the contractor could not
hire these State employees, the contract restrictions would result in a
funding reversion if the deadline were not met. The State employees who
would fulfill the contract were well qualified to provide the services and
would perform the functions during non-regular business hours so that it
would not interfere with their full-time employment. One was a Merit
employee and the other was a non-Merit employee. The agency asked if the
contractor could hire the employees, and if so, whether they should be paid
or receive compensatory time.

The Code restricts employees from accepting other employment if it would
result in: (1) impaired judgment; (2) preferential treatment to any person;
(3) government decisions outside official channels; or (4) appear improper.
29 Del. C. § 5806(b).

The Commission found no violation of the Code under these facts. Even
assuming a violation, the Commission may grant waivers if there is an undue
hardship for the State agency. 29 Del. C. § 5807(a). Here, the need of the
agency to fulfill the contract obligation, with consideration of both the
expertise required for the program and the need to meet the contract
deadline, would constitute a hardship for the agency.

Regarding whether the employees should be paid or receive compensatory
time, the Commission did not find that decision to be within its
jurisdiction. Rather, the agencies should determine how compensation will
be made based on the contract provisions and any other relevant law or
rule. For example, as to the Merit employee, the agency might review such
things as the Merit Rules regarding dual employment with another State
agency (Rule 5.0500) and the Merit Rule on partial compensation received
from another agency (Rule 5.0500). See, Merit Rules (Revised August 12,
1994). (Commission Op. No. 96-17).

Contracting with a State Agency

A State employee started his own computer company as an outside business.
He asked if he could bid on a State contract that was to be publicly
noticed and bid. The contract was not with his own agency, nor did he have
any dealings with the agency in his official capacity. He asked if his
outside employment violated the Code of Conduct.

The Code prohibits State employees or any private enterprise in which they
hold a legal or equitable ownership of more than 10% (more than 1% if the
corporate stock is regularly traded on the securities market) from bidding
on State contracts of more than $2,000 if there is no public notice and
bidding. 29 Del. C. § 5805(c). As there was notice and public bidding for
this contract, the amount of the contract and the amount of the ownership
interests were immaterial, and as a State employee, he could bid on the
contract.

The Code also prohibits State employees from representing private
enterprises before the agency by which they are employed. 29 Del. C. §
5805(b)(1). As he would not be representing the private enterprise before
his own agency, there was no violation of this section.

Regarding whether his outside employment created a conflict, the statute
provides:

No State employee 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 State employee shall accept other employment . . . under circumstances
in which such acceptance may result in any of the following:

(1) impairment of judgment in exercising official duties;

(2) an undertaking to give preferential treatment to any person;

(3) the making of a government decision outside official channels; or

(4) any adverse effect on the public's confidence in the integrity of the
government.

29 Del. C. § 5806(b).

The Commission has previously held that to insure there is no substantial
conflict with performing official duties, the individual should not perform
any functions related to the outside employment during the hours when the
individual is supposed to be performing State duties. See, e.g., Commission
Op. Nos. 95-13, 95-30, 95-39. Here, the State employee would perform the
contract obligations in the evenings and on weekends, when he was not
working.

The facts do not appear to create a situation which would tend to impair
judgment, or result in preferential treatment or decisions outside official
channels because the agency with which he sought to contract was not the
same agency where he was employed, and the official decisions made for the
agency where he worked did not impact on the contracting agency or vice
versa.

As the law permits State employees to contract with State agencies if there
is notice and public bidding, and as he was not representing the private
enterprise before the agency which employed him, it did not appear that
such action would have any adverse effect on the public's confidence in its
government.

However, the Commission bases its opinions on a particular fact situation.
29 Del. C. § 5807(c). If he were selected as the contractor and learned
additional facts which raised issues under the above provisions, or any
other Code of Conduct provision, he was to re-evaluate his situation and
return to the Commission for additional advice if necessary. (Commission
Op. No. 96-48).

Consulting with facilities regulated by Employee's Agency

A State employee who inspected certain private facilities for compliance
with Federal and State regulations had duties which included going to the
facilities, interviewing clients and residents, making observations, etc.,
and writing a report on whether the facility complied with regulations.
When a facility had not complied with the regulations, it had to write a
plan of correction, and submit the plan to his office for approval.

He was contemplating becoming a consultant during off duty hours and
anticipated two consulting possibilities.

First, he asked if he could be a consultant to the same type of facilities
in another state. He wanted to provide quality assurance to improve
facility compliance with the State and Federal regulations. He said the
Delaware facility owners, which his office licensed and certified, might
also own the same kind of facility in other states and that he would seek
clients from those Delaware owners.

Second, he asked if he could consult with the regulated facilities in
Delaware if he transferred to another division in his own agency or to
another State agency.

He would call the Delaware providers to see if they wanted to hire him. For
out-of-state clients, which Delaware providers did not own, he would go
door-to-door. He intended to tell prospective clients that he regulated
such facilities in Delaware.

The Code prohibits outside employment under circumstances where it may
result in any of the following:

(1) impairment of independence of judgment in exercising official duties;

(2) undertaking to give 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).

State employees, officers and officials also must not engage in conduct
that would raise suspicion among the public that they are violating the
public trust and that would not reflect favorably upon the State. 29 Del.
C. § 5806(a).

State employees also may not use public office to secure unwarranted
privileges, private advancement or gain. 29 Del. C. § 5806(e).

(A) Consulting Work Outside the State

The Commission concluded it might appear to the public that he would give
preferential treatment to companies with facilities regulated in Delaware
if he consulted for those same companies in other States. Thus, the
public's confidence in the integrity of its government could be adversely
affected, which would violate 29 Del. C. § 5806(b)(4).

Additionally, there could be an appearance of impropriety, even if the
Delaware companies he regulated did not own the out-of-state facilities.
When he inspected for compliance with federal regulations, federal monitors
followed-up on his inspections. If he advised an out-of-state client how to
comply with the same federal regulations he enforced in Delaware, and the
federal agency that monitors his Delaware work challenged his advice, he
could find himself in an adversarial role with the federal agency he must
work with as part of his State position.

This Commission previously recognized that if an individual worked as a
private consultant to companies outside of Delaware on the same matters his
agency was responsible for in Delaware, his advice as a consultant could be
later challenged, and his State position would certainly be brought out.
Commission Op. 91-19. The Commission believed this adversarial position
would reflect unfavorably on the employee's position of holding the public
trust, and therefore would violate the Code. Similarly, if this employee
advised clients outside of Delaware on federal regulations he enforced in
Delaware, and had his advice challenged, his State position would certainly
be brought out in an adversarial proceeding. This Commission must issue
advisory opinions with a view toward consistency. 29 Del. C. § 5809(5). To
insure consistency in its opinions, the Commission found that the
activities he wished to engage in with out-of-state clients would violate
29 Del. C. §5806(a).

In soliciting out-of-state clients, he planned to inform prospective
clients of his position as a specialist with Delaware and tell them he
inspected the same type of facility in Delaware. Even if the out-of-state
facilities were not owned or operated by a Delaware company regulated by
his agency, he could persuade out-of-State clients to hire him because such
facilities in all States have to comply with the federal regulations he
enforces as part of his State job. Prospective clients may believe he has
an inside track on applicable federal regulations. Also, if clients
followed his advice, and later had a compliance problem, they might argue
that because he inspects Delaware facilities for compliance with the same
federal regulations, his advice carries an inspector's seal of approval.

The Code prohibits State employees from using public office to secure
unwarranted privileges, private advancement or gain. 29 Del. C. § 5805(e).
It also prohibits conduct that would raise the suspicion among the public
that an employee is engaging in acts violating the public trust. 29 Del. C.
§ 5806(a). As a minimum, because he would be soliciting clients and telling
them of his State position, it might appear to the public that he was using
his State position to secure private clients for his own financial gain.

(B) Consulting with Delaware facilities

(1) While working in another position in the same agency

This employee had applied for another position in the same division where
he presently worked. This would mean that he would still be an inspector in
the same field, but would be inspecting different facilities.

Assuming he was selected for the position, the outside employment provision
would still apply. See , 29 Del. C. § 5806(b)(4). If clients hired him to
consult on issues regulated by his same division, it might appear that his
clients would receive preferential treatment from the persons within that
division.

This Commission previously ruled that accepting outside employment with
businesses regulated by their agency would be improper for State employees.
Commission Op. No. 96-41(where State employees enforced regulations against
a specific industry, accepting outside employment with those same companies
would be improper because, as a minimum, it could adversely affect the
public's confidence in government because the public might assume that the
employees would give preferential treatment to the outside employer when
enforcing the regulations. Also, the public may believe that the employees'
judgement would be impaired because of the conflict between performing
duties for the outside employer and the need to enforce State laws against
that same employer).

Beyond the outside employment restrictions, the Code prohibits State
employees from representing or otherwise assisting private enterprises with
respect to any matter before the State agency with which they are
associated by employment. 29 Del. C. § 5805(b)(1).

Thus, if selected for the job, if he consulted with private facilities
regulated by the same agency that employed him, he would be at least
"assisting" them with respect to matters before his agency because he would
be advising them on how to comply with the regulations enforced by his
agency. Thus, the Commission concluded that serving as a consultant to a
private enterprise regulated by his agency under such circumstances would
violate 29 Del. C. § 5805(b)(1).

(2) If transferred to another agency

He also asked if he went to another State agency, whether consulting with
the facilities in Delaware would be permissible. This Commission must issue
advisory opinions based on "particular facts." 29 Del. C. § 5807(c).
Without the particulars of what the job would entail, what regulatory
authority would be exercised in the position, etc., the Commission did not
have particular facts to render a decision. (Commission Op. No. 96-66).

Teaching as Outside Employment for a Public School Teacher

A State employee asked if it were a conflict of interest for him to hold
outside employment teaching a private course similar to a course he taught
in the public schools for students. He and his spouse owned a company that
offered the course.

The Code of Conduct prohibits State employees from having any interest in a
private enterprise or incurring any obligation of any nature in substantial
conflict with the proper performance of official duties. It also prohibits
outside employment if it may result in: (1) impaired independence of
judgment in exercising official duties; (2) an undertaking to give
preferential treatment to any person; (3) a government decision outside
official channels; or (4) any adverse effect on the public's confidence in
the integrity of the government. 29 Del. C. § 5806(b).

The employee did not conduct business related to his private enterprise
during hours when he was working for the State. He also did not use
supplies, vehicles, books, etc., from his State employment to teach the
outside course. If he used State facilities to teach the course, his
private enterprise would pay a rental fee set by the State. The course was
advertised by either notice in newspapers or to insurance companies to
their clients, and did not specifically target students at the school where
he taught. Students or their parents from the public school might respond
to the ads, but not many had done so. When teaching the outside course, he
did not mention the specific school where he taught, but did say he was
teaching a similar subject in public schools.

Under these facts, the Commission found no violation of the outside
employment provision. (Commission Op. No. 96-20).

Gifts, Payments, etc.

Scholarship

A national professional association of government employees in a certain
career field offered scholarship opportunities to public employees to
attend a university course to enhance public administrative skills. The
scholarship paid for tuition, room, board, etc. Some private companies
contributed the tuition funds to the national association. The association
and the university reviewed applications to decide who would receive a
scholarship.

The Code of Conduct restricts acceptance of gifts, payment of expenses, or
anything of monetary value if it may result in: (1) impaired judgment in
exercising official duties; (2) preferential treatment to any person; (3)
making government decisions outside official channels; or (4) any adverse
impact on the public's confidence in the integrity of the government. 29
Del. C. § 5806(b).

The association offering the scholarship opportunity did not do business
with and was not regulated by the individual's agency. The agency did not
regulate the companies contributing to the tuition, but several were
vendors. The individual had no personal role in selecting those companies
as vendors for the agency; and was not aware that any contributor had any
dealings with the agency, until after attending the course when the
individual conducted a search to learn if the State agency had such
dealings. The Commission concluded that the individual could not have given
preferential treatment nor had impaired judgment when that individual did
not choose the vendors. (Commission Op. No. 96-52).

Tickets and Accommodations for an Athletic Event

A State officer received passes to an athletic event and the cost of
lodging while attending the event from a friend who was a State employee in
another State. The friend received the passes from a corporation.

The standard for accepting gifts is whether such acceptance would result
in: (1) impairment of judgment in exercising official duties; (2)
preferential treatment to any person; (3) government decisions outside
official channels; or (4) any adverse impact on the public's confidence in
the integrity of its government. 29 Del. C. § 5806(b).

The friend worked for a State agency in another State and had no
affiliations or business with the State officer's Department or with any
Delaware State agency. Additionally, the corporate sponsor had no dealings
with either the officer's Department or any State agency. The Commission
found that accepting the gift did not raise an ethical issue. (Commission
Op. No. 96-28).

Lunches from Vendors

Vendors for a State agency were selected to give product presentations
during the employees' lunch hour. Although the purpose of the presentations
was to educate the employees on the products, the selected vendors also
provided lunches, such as sandwiches, pizza, etc. Employees were not
required to attend and rarely could they receive educational credit for
doing so. Although the employees who attended did not make direct decisions
on whether such vendors would be used, they were trained professionals who
provided opinions to those who decided if the product would be used. A
representative from the agency and a vendor stated that no pressure was put
on vendors to provide the lunches. They noted that without the lunches, the
staff was not as inclined to attend. They asked if such lunches fell within
the meaning of "gift" and whether acceptance violated the Code of Conduct.

The Code of Conduct restricts employees from accepting:

"other employment, any compensation, gift, payment of expenses or any other
thing of monetary value under circumstances in which such acceptance may
result in any of the following: (1) impairment of independence of judgment
in the exercise of official duties; (2) an undertaking to give preferential
treatment to any person; (3) the making of a governmental decision outside
official channels; or (4) any adverse effect on the confidence of the
public in the integrity of the government of the State." 29 Del. C. §
5806(b).

The Code of Conduct does not define "gift." The rules of statutory
construction require terms to be read in their context and given their
common and ordinary meaning consistent with the manifest intent of the
General Assembly. 1 Del. C. §§ 301 and 303. The dictionary definition of
"gift" is "something voluntarily transferred by one person to another
without compensation." Merriam Webster's Collegiate Dictionary, p. 491
(10th ed. 1993). This definition seems consistent with the General
Assembly's intent because the same provision separately refers to "any
compensation" and "payment of expenses." Under the statutory terms, the
lunches could be considered: (1) gifts; (2) payment of expenses; or (3) any
other thing of monetary value.

No matter which term applies, the test is whether acceptance violates any
of the four statutory criteria. The Commission presumed that acceptance
would not actually result in impaired judgment, preferential treatment, or
government decisions outside official channels. However, to decide if
acceptance would adversely effect the public's confidence in the integrity
of the government, the Commission looked at the totality of the
circumstances. Although attendees had no direct decision making authority,
their indirect authority was significant because they were trained
professionals who could speak with authority on the product's value to
those who decide which vendor to use. Further, the public could view the
training as not so vital because no one was required to attend and
educational credit was rarely given. Also, the unique timing of the
sessions, only during lunch hours, could be viewed by vendors and the
public as subtle pressure to provide lunch, especially as no one was
required to attend and they generally were not given credit for doing so.

The Commission weighed this public view against the facts which diminished
the question of an improper appearance: (1) the individuals did not
directly decide matters about the product; (2) the meals were apparently
not elaborate and apparently did not cost much; (3) vendors were not
required to provide meals and the vendor who appeared before the Commission
said he did not feel pressured; (4) the individuals who did attend might
enhance their knowledge and skill; and (5) while educational credit was not
generally provided, the Commission noted that the agency representative,
who was a trained professional, believed the sessions were valuable.

The Commission found balancing these views difficult under these particular
facts, but held that it must place the views within the purpose of the
statute which is to insure the public's confidence in its employees and
officials. 29 Del. C. § 5802. Statutes enacted for a public purpose are
broadly construed to achieve that public purpose. See generally, 3A Sands,
Sutherland Stat. Constr. Chapter 71, (5th ed. 1992). In balancing the views
in favor of the public purpose, and under the particular facts of this
case, the Commission concluded that accepting the lunches from vendors
created a perception problem. The elements creating the perception problem
were: (1) the indirect, but significant potential of influence on
decisions; and (2) the people paying for the lunches were sales
representatives, not professional instructors, so by the very nature of
their job, a perception could exist that they could use the sessions as an
indirect avenue to a sale (emphasis by the Commission).

Aside from the lunches, vendors also periodically provided pens, notepads,
mugs or clipboards to the staff. The Commission held that because the
recipients had no direct decision making authority, the issue was whether
acceptance may raise an appearance of impropriety. The Commission assumed
that the items were promotional in nature, e.g., carried the company's logo
and not very costly. Aside from the minimal costs, the Commission noted the
FDA regulated these particular vendors regarding what kind of items may be
given. There were no facts presented to suggest that acceptance created a
perception of impropriety. (Commission Op. No. 96-78).

Gift Certificate from Business Agent

A state employee was responsible for constituent relations in her division.
As such, she responded to inquiries from certain business agents, such as
the appropriate time for filing certain documents, status of a claim, etc.
During the holiday season, she received a seasonal card from a business
agent. Enclosed in the card was a $100 gift certificate. The card expressed
appreciation for her assistance in matters related to her State job. She
believed acceptance would create an appearance of impropriety and sought an
opinion from the Commission.

Her statement to the Commission was that she gave the same type of
information and assistance to this business agent as she gave to anyone
else who made inquiries. The Commission found that acceptance would, as a
minimum, create an appearance of impropriety resulting in an adverse effect
on the public's confidence in the integrity of State government because it
might appear that acceptance would result in preferential treatment to the
business agent. Accordingly, the Commission directed that the gift be
returned. (Commission Op. No. 96-04).

Samples from Vendors

Various vendors gave a State agency equipment samples to evaluate whether
the equipment would be selected for official use by students/schools. A
committee evaluated the equipment, and selected the vendor's equipment that
would be for official use. The agency director asked if accepting the
samples were proper. He also asked if he could use the samples as door
prizes at a conference.

The Code of Conduct prohibits accepting anything of monetary value if
acceptance may result in: (1) impaired judgment in exercising official
duties; (2) preferential treatment to any person; (3) official decisions
outside official channels; or (4) an adverse effect on the public's
confidence in State government. 29 Del. C. § 5806(b).

As the official status selection was not within the director's sole
discretion, and as sales representatives commonly provided evaluation
samples, the Commission found no violation of the above provision,
regarding accepting the samples.

Regarding using the samples as door prizes, the Commission found no
specific applicable provision in the Code of Conduct. A general provision
precludes State employees from engaging in conduct violating the public
trust. 29 Del. C. § 5806(a). Because the equipment was only a sample to aid
the decision making process, and the students/schools would have official
regulation equipment for use, the Commission found no violation in using
the samples as door prizes. (Commission Op. No. 96-59).

Payment to Honorary Officials

A State regulatory commission examined, licensed and renewed licences of
applicants for certain licenses. A different agency selected a contractor
to prepare examination questions. However, it might seek input from the
commission members on the contractor.

To insure test questions prepared by the contractor reflected changes in
the law and in industry practices, a panel of experts in that field
reviewed the questions to decide which ones would be retained, updated or
discarded to maintain the test validity. Two commission members and others,
including some State employees, spent two (2) days reviewing 500 questions.
The contractor offered each participant, not just the commissioners, $100
per day for their work. The State employees did not accept the payment as
they received their regular State compensation for attending, unlike the
commissioners.

By law, the appointed commission members were paid $50 per meeting and
could not be paid more than $500 per year, nor be paid for more than 10
meetings per calendar year. (1) Attending the test-development sessions was
not considered a meeting and therefore, the State could not pay the
commissioners.

Honorary State officials cannot accept any compensation, gift, payment of
expenses or any other thing of monetary value if such acceptance may result
in: (1) impaired judgment in exercising official duties; (2) undertaking to
give preferential treatment to any persons; (3) official decisions outside
official channels; or (4) any adverse effect on the public's confidence in
the integrity of the State government. 29 Del. C. § 5806(d).

Under these facts, the Commission found no violation of 29 Del. C. §
5806(b). (Commission Op. No. 96-19).

Payment of Expenses by Contractor

The State Code of Conduct prohibits State employees from accepting any
compensation, gift, payment of expenses or any other thing of monetary
value under circumstances in which 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 a government decision 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).

A State employee was asked to participate in a national study conducted by
a federal agency. The federal agency had contracted with a private
consulting firm to develop a strategy for collecting data on health issues
through an intergovernmental partnership. The consulting firm invited
health officers, including a Delaware officer, to work with a focus group
in Washington, D.C. for two days. The Delaware officer believed his
participation in the group would benefit the State because Delaware would
have an opportunity to help develop national policies, plus it would
increase his own knowledge and development. The focus group worked
throughout the first day, and reported back to the full group at the end of
the day. Additional focus group sessions and policy discussions occurred on
the second day. No entertainment was provided by the contractor or the
federal government. He attended the conference on his vacation time. The
consulting firm notified him that it would reimburse his expenses for
travel and accommodations.

Previously, the consulting firm had contracted with his agency, but he did
not participate in the decisions. More recently, he served on a committee
which selected a contractor and the consulting firm had submitted a bid. It
was not selected. It was possible that the firm might seek future contracts
with his agency.

The Commission found that his independence of judgment in exercising
official duties would not be influenced by having the expenses paid because
he was not aware of any anticipated or pending contract requiring decisions
by him that involved the consulting firm. Similarly, because he would not
be making such decisions, it did not appear that he could give preferential
treatment to the firm. As no government decision was to be made by him
regarding the firm, it seemed unlikely that he could make a decision
affecting the firm outside official channels.

However, because the firm may pursue a contract with his agency and/or
Division in the future, the Commission alerted him that if it happened a
question of whether it would appear to the public he might give it
preferential treatment in contract decisions might arise. This would depend
on the specific facts. As the Commission must base its advisory opinions on
a "particular fact situation," 29 Del. C. § 5807(c), he was advised that if
a specific situation arose, the Commission could then address the question.
(Commission Op. No. 96-57).

Reimbursement by a Non-Profit Foundation

Two State employees attended a criminal justice conference which consisted
of daily meetings and discussion groups, including breakout group sessions
on the weekends, where groups were assigned topics to discuss and report
back all conference attendees. Additionally, evening meetings were held and
presentations were made during dinner. The two State employees were active
participants in the discussions and presentations. Their trip was paid for
by a non-profit foundation which funds grants to States to develop and
implement criminal justice programs. The non-profit organization did not
receive any State funds from Delaware; it had no contracts with Delaware;
and neither employee engaged in any activity to solicit grants for Delaware
from the non-profit foundation.

The Code prohibits acceptance of payment of expenses where acceptance may
result in: (1) impaired judgment in performing official duties; (2) an
undertaking to give preferential treatment to any person; (3) official
decisions outside official channels; or (4) any adverse impact on the
confidence of the public in the integrity of its government. 29 Del. C. §
5806(b). As the two individuals had no decision making authority over the
foundation; the foundation had no dealings with the State such as seeking
contracts, etc.; and the seminar was intensive and educational in nature,
the Commission found no violations. (Commission Op. Nos. 49 & 50).

APPEARANCE OF IMPROPRIETY

A private retirement home asked a State officer to sign a letter soliciting
funds. The letter mentioned that he had family members who were cared for
at the facility. Although his agency did not regulate the facility, the
State did. He would sign the letter as the son of a resident, not as a
State official. However, he believed they asked him to sign the letter
because of his name recognition that resulted from being in public office.
No other persons with family members at the facility were asked to sign a
solicitation letter. While he was very satisfied with the care given to his
parent, he asked if signing the letter was appropriate.

The Code prohibits State employees, officers and honorary officials from
using public office to secure unwarranted privileges, private advancement
or gain. 29 Del. C. § 5806(e). It also prohibits conduct which may raise
public suspicion that the individual is engaging in acts violating the
public trust and acts which will not reflect favorably upon the State. 29
Del. C. § 5806(a).

The Commission found that signing the letter would be inappropriate for him
as it might appear that because of his name recognition, which was based on
being in public office, he (through his parent) would secure some private
gain or privilege from soliciting funds and/or it might be seen by the
public as an official endorsement of this private enterprise. (Commission
Op. No. 96-62).

CONFIDENTIAL INFORMATION

A State employee was the lead point of contact for his agency's procurement
activities. His brother-in-law's private firm periodically bid on locksmith
contracts with the agency. The procurement law prohibited disclosure,
during negotiations, of the contents of proposals to prohibit availability
to competing offerors. 29 Del. C. § 6922. The agency delegated
responsibilities concerning the locksmith contracts to the individual's
supervisor. The Code of Conduct prohibits engaging in activities that might
reasonably be expected to require or induce one to disclose confidential
information acquired by public position. 29 Del. C. § 5806(f). It also
prohibits disclosing or otherwise using confidential information for
personal gain or benefit. 29 Del. C. § 5806 (g). As the agency had
delegated the review and disposal of the contracts to the individual's
supervisor, he did not participate in negotiations or otherwise have access
to information, such as quotes from competitors, etc. Therefore, the
Commission found no violation of the confidentiality provisions.
(Commission Op. No. 96-42).

See also, Commission Op. No. 96-74, p. 38 and Commission Op. No. 75, p. 43,
Interpreting "Confidential Information" in Post-Employment Context.

JURISDICTION

Members of the General Assembly

A complaint was filed against a General Assembly member. The Commission
previously held that the Code of Conduct does not apply to such persons.
Commission Op. No. 94-14. It applies to State employees, officers and
honorary officials. General Assembly members are specifically excluded from
the definitions of State employees and officers. See, 29 Del. C. § 5804
(11)(b)(1) and (12)(a). They do not fall within the definition of honorary
officials as those persons are appointed and General Assembly members are
elected. See, 29 Del. C. § 5804(13). Further, conflicts of interest for
General Assembly members are governed by 29 Del. C. § 1001, et. seq. That
law is enforced by the House Ethics Committee for Representatives and the
Senate Ethics Committee for Senators. 29 Del. C. § 1003. As the Commission
had no jurisdiction, it referred complainant to the appropriate Ethics
Committee. (Commission Op. No. 96-11).

Employees of Local Government

Complaints were filed against individuals who were employed by local
governments. The State Code of Conduct applies to local governments who
have not adopted their own Codes of Conduct. 68 Del. Laws c. 433 § 1. Four
local governments have adopted their own codes--Lewes, New Castle County,
Newark and Wilmington. As the individuals were employed by local
governments which had adopted their own code, the Commission had no
jurisdiction and referred complainants to the local governments.
(Commission Op. Nos. 96-11 and No. 96-45).

Judges, Prosecutors, and Local Government Police

After being charged with murder, complainant filed a complaint against a
judge, prosecutors, local police officers and detectives, and an expert
witness hired by the local government. He alleged that witnesses perjured
themselves; the prosecutors filed a motion to exclude evidence; an expert
hired by the prosecution altered evidence; complainant's home was searched
without a warrant; and the judge refused to hold a suppression hearing. To
the extent complainant was alleging the State Code of Conduct was violated,
the Commission held:

The Code of Conduct applies to State employees, officers and honorary
officials. The Commission has no jurisdiction over the judiciary as they
are specifically excluded from the definitions of State employee and
officer. See, 29 Del. C. § 5804(11)(b) and (12)(a). They are not honorary
officials because although appointed, they receive more than $5,000 per
year. See, 29 Del. C. § 5804(13). Further, their conduct is governed by the
Judicial Code of Conduct.

The Commission also had no jurisdiction over the local police and
detectives because their conduct was governed by a Code of Conduct adopted
by their local government. See, 68 Del. Laws c. 433 § 1.

No facts suggested that the hired expert was a State employee, officer or
official, or that he was a local government employee or official who was
subject to the State Code of Conduct. Accordingly, the Commission concluded
it had no jurisdiction over him.

Regarding the prosecutors, the Commission held that while they are State
employees, this Commission has limited jurisdiction only over the subject
matter addressed by its statute. There is no provision governing the types
of procedural and evidentiary matters of which the individual complained.
Rather, the appropriate criminal laws and rules of procedure govern such
matters and those laws and rules are not within the Commission's
jurisdiction. (Commission Op. No. 96-38).

State Regulatory Body

An Association was created by statute to regulate a profession. The
Governor appointed some members of its "governing board" and the
professional membership elected others. It asked if the Association was a
"State agency" and if the Board members were subject to the State Code of
Conduct.

The Code applies to State employees, officers and honorary officials. See,
e.g., 29 Del. C. §§ 5805 and 5806. Appointees to a "State agency" are
either "State employees" or "Honorary State officials." "State employee"
means "any person (1) who receives compensation as an employee of a State
agency; or (2) who serves as 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 service in a calendar year"
(excluding, among others, Honorary State officials). 29 Del. C. §
5804(11)(a). "Honorary State official" means "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." 29 Del. C. § 5805(13).

"State agency" means "any office, department, board, commission, committee,
court, school district, board of education and all public bodies existing
by virtue of an act of the General Assembly . . . " 29 Del. C. § 5804(10).

The regulatory body existed by an act of the General Assembly. It was
deemed a "public body" under the Freedom of Information Act (FOIA). It was
called a State agency in the Administrative Procedures Act (APA). By
statute, the appointees constituted a "board." Although self-regulating, it
performed the same regulatory functions performed by State boards and
commissions that regulate other professions under Title 24. Like other
State regulated professions, it was subject to "regulation in the public
interest."

The Code of Conduct was created to insure conduct that does not violate the
public trust or create a justifiable impression among the public that the
public trust is being violated. 29 Del. C. § 5802.

Because the regulatory body was statutorily created by the General
Assembly; was deemed a "public body"; was referred to as a State agency;
functions as similar State boards and commissions; and was charged with a
public trust; the Commission found that it was a "State agency" for
purposes of the Code of Conduct.

By statute, the appointees were part of the "governing board." As such,
they were "directors or the like," under the Code of Conduct, because the
statute gave them authority for the overall direction of the organization
through the establishment of bylaws related to the administrative and
domestic duties of the organization.

The appointees of the board had a statutory right to accept renumeration,
but they had elected not to do so. This Commission previously held that
where appointed members of a Council established by statute were not
entitled to compensation that they were still covered by the Code of
Conduct because the "important consideration in the determination of
whether an Honorary State Official is covered is the authority and
responsibility of that office, not just the compensation." (Commission Op.
No. 92-1,A-1). Thus, the fact that the appointed members were not accepting
compensation was not a determinative factor. The Commission found that they
were: (1) appointed; (2)"directors or the like" of a State agency; and (3)
could reasonably expect to receive less than $5,000 per calendar year.
Accordingly, they were "Honorary State Officials" and subject to the Code
of Conduct.

The membership elected the remaining board members. Under a literal reading
of the statute, they would not be considered: (1) "Honorary State
Officials," as they are not appointed; (2) "State officers" because they
are not required to file a financial disclosure statement; and (3) "State
employees" because they were not accepting compensation from the State as
they had elected not to establish bylaws concerning renumeration.

The rules of statutory construction require that statutes be construed
consistent with the manifest intent of the General Assembly. See, 1 Del. C.
§§ 301 and 303. The General Assembly found that the conduct of State
government officials must hold the respect and confidence of the people and
that to ensure propriety and to preserve public confidence, such persons
"must have the benefit of specific standards to guide their conduct." 29
Del. C. § 5802. It stated that the code "shall be construed to promote high
standards of ethical conduct in state government." 29 Del. C. § 5803.
Generally, statutes enacted for a public purpose are broadly construed to
serve that public purpose. See generally, 3A Sands, Sutherland Stat.
Constr. Chapter 71, (5th ed. 1992).

The elected members, with the appointed members, are the "governing board"
of a State agency. The agency was subject to public scrutiny under FOIA.
The purpose of FOIA is to let citizens observe the performance of public
officials and to monitor their decisions and is broadly construed to serve
that purpose. 29 Del. C. § 10001. Such legislation has the effect of
instilling the respect and confidence in its public officials, just like
the Code of Conduct. See, e.g., Levy v. Board of Cape Henlopen School
District, Del. Ch. C.A. No. 1447,V.C. Chandler (October 1, 1990 at 20)(FOIA
is designed to insure government accountability and is the method by which
government officials earn the public trust). The regulatory agency was
charged with regulating the practice of a licensed profession in Delaware
"in the public interest." Under the rules of statutory construction,
interpretation of one statute may be influenced by the language of other
statutes where they apply to similar persons, things or relationships to
aid in a more harmonious and uniform system of law and may supply evidence
that legislative action is standardized. 2B Sands, Sutherland Stat. Constr.
§ 53.02 (5th ed. 1992); Id. at § 53.05(the general course of legislative
policy in other statutes may be used to show intent or convey meaning of
another statute).

This regulatory agency was unique from other governing bodies of
professional regulatory agencies established by Title 24 in that some
members were appointed and some were elected, while the governing bodies of
all other Title 24 professional regulatory agencies are comprised only of
appointees. See, e.g., Title 24, "Professionals and Occupations." However,
it was charged with essentially the same duties as other professional
regulatory agencies, except the regulated profession was different. As the
appointed members and the members of the governing bodies of all other
professional regulatory agencies appeared to be subject to the State Code
of Conduct, the Commission did not believe the legislature intended to
exclude the elected members of this governing board merely because of
uniqueness in structure when the functions are essentially the same and
there is a public purpose to be served. Accordingly, the Commission found
that the elected members of the governing board also were subject to the
Code of Conduct. (Commission Op. No. 96-39).

Criminal Law Complaint

Complainant alleged that the Attorney General's office had improperly
concluded, after an investigation, that the acts of a State employee did
not constitute violations of criminal laws such as: issuing a false
certificate; tampering with public records; and official misconduct.
Because the AG's office did not find a violation of those laws, complainant
alleged that something "illegal and unethical" was "going on" in the AG's
office. As complainant did not identify the criminal laws he believed the
AG's office had violated, the Commission assumed that his allegation was
all encompassing.

First, the Commission held that to the extent he was alleging violations of
any crime outside the scope of the State Code of Conduct, it had no
jurisdiction over such laws. It also had no authority to interpret Title 11
criminal code provisions to decide if, in fact, the State employee had
engaged in criminal acts, as the Attorney General is charged with the power
and duty to investigate, upon information received, possible violations of
the criminal code. See, 29 Del. C. § 2504(4) and In re Eastburn & Son, Del.
Super., 147 A.2d 921(1959).

Second, while the State Code of Conduct has certain provisions that rise to
the level of a criminal violation, [See, 29 Del. C. § 5805], he had not
identified which provisions he believed were violated. See, Commission
Rules and Regulations, IV (C)(complainant must file a sworn statement;
include the known facts; and identify Code sections he believes were
violated). Thus, the Commission reviewed each provision within Section 5805
and determined that the facts failed to state a claim under any provision
which carried a criminal penalty. The complaint was dismissed. See, 29 Del.
C. § 5809(3)(Commission may dismiss any complaint that fails to state a
violation). (Commission Op. No. 96-10).

POST-EMPLOYMENT

Soliciting Former State Clients

Just before leaving her State job, an employee wrote to the clients
assigned to her by the State and told them she was going to work for a
private enterprise. She also told them that the private enterprise could be
selected as a service provider by the client. Federal law required that
clients be offered a choice of providers. It was the agency's intention to
notify clients of their right of choice, and it planned to identify private
enterprises which had contracted with the State as providers, such as the
one where the employee was going to work. No facts indicated that a
substantial number of her clients selected the provider for which she was
going to work, as a result of her letter. Additionally, she did not
participate in any decision to select the private enterprise as a service
provider for the State. Further, she had sought an advisory opinion from
the Commission for a determination of whether she could accept employment
with the contractor. Commission Op. No. 95-17. At that time, she said she
was not using the list of her State clients to encourage them to switch to
the private contractor. Rather, she sought to inform them of their rights.
Agency representatives and the former employee met with the Commission to
discuss this situation, and review the letter. There apparently was some
confusion between the agency and the employee regarding whether who should
notify clients of her change in status and of their ability to select her
new employer, who had contracted with the State, as a service provider.

The agency did not seek a decision on whether, in this particular instance,
the former state employee violated the Code. Rather, it sought guidance on
avoiding possible confusion in the future. The Commission may "provide
assistance to state agencies, employees and officials in administering the
provisions of this law." 29 Del. C. § 5809(10). The Commission noted that
the Code prohibits disclosure of confidential information beyond the scope
of the employee's position or the use of such information for personal gain
or benefit. 29 Del. C. § 5806(g).

While the Commission believed it was of service to notify clients when a
person handling their case leaves State service, it noted that the clients
are clients of the State, not of the individual. To the extent that client
names could be considered proprietary or confidential, the Commission
suggested that the agency could avoid future questions regarding such use
of the information, by establishing the type of notice to clients that
would best suit the agency, its clients, and employees. For example, the
agency may wish to develop a policy on notifying clients of an employee's
departure, rather than having the employee send such notice. (Commission
Op. No. 96-01).

Moot Issue

A former State employee asked if he could accept a consultant position with
his former agency. However, as the agency had selected another individual,
the Commission found that the issue was moot. (Commission Op. No. 96-79).

"Particular Facts" Required

An individual who intended to leave State employment asked if his proposed
post-employment activities would violate the Code of Conduct. He had not
accepted any offer with any employer nor had he decided if he would pursue
a consulting contract with the State. He said it was possible that he might
work for a company that could have State contracts. The Commission must
base its decisions on a "particular fact situation." 29 Del. C. § 5807(c).
As he had no particular company in mind, nor was he aware of any particular
State contract on which he might work, the Commission held that the facts
were insufficient for a decision. It referred him to the Commission's
synopses of post-employment opinions and advised that once he identified a
specific post employment position, he could return for a decision.
(Commission Op. No. 96-69).

Computer Consultant to State Agency

A State agency notified 30 vendors of a computer consulting opportunity. A
State employee learned of the opportunity and applied. The employee asked
if it would violate the post-employment provision if she left State
employment and accepted the position.

The post-employment provision imposes a 2-year restriction against former
State employees representing or assisting a private enterprise on matters
involving the State if the employee: (1) gave an opinion; (2) conducted an
investigation; or (3) was otherwise directly and materially responsible for
the matter while employed by the State. 29 Del. C. § 5805(d). It also
prohibits disclosing or otherwise using confidential information gained as
a State employee for personal gain or benefit. Id.

While a State employee, the individual had worked on computer programs,
which she would be doing if she selected as the consultant. However, she
had not worked for the same agency while employed by the State; had not
been in anyway involved with the agency while employed by the State; and
the computer work was not on the same subject matter for which she was
responsible while employed by the State. Thus, she would not be
representing or assisting the private enterprise on matters on which she
gave an opinion, conducted an investigation, or was otherwise responsible
for while employed by the State. Further, the type of information she had
access to while employed by the State was not information that would aid
her in the agency contract. She said she would not disclose or use any
confidential information gained as a State employee. The Commission found
no violation under these facts. (Commission Op. No. 96-81).

Computer Consulting with Former Agency

A State agency contracted with a firm to provide computer services for a
multi-year project. Later, the contractor defaulted and the agency needed
to hire another contractor. The agency wanted to use a firm owned and
operated by a former State employee. Also the firms' systems designer who
would be assigned to the project was a former State employee. The agency
wanted them to complete part of the multi-year project and then would
publicly notice and bid the remainder of the project.

As neither the owner of the firm or the program designer had been
terminated for more than 2 years, the commission considered whether the
agency contract was a matter on which either of them had: (1) given an
opinion; (2) conducted an investigation; or (3) were otherwise directly and
materially responsible for while employed by the State, as provided the
post employment provision. 29 Del. C. § 5805(d).

Both former employees had worked for the same agency. However, neither had
worked for the section that was seeking to contract; neither had
participated in anyway in putting together the contract that the defaulting
contractor had been awarded; and neither had been involved with the project
which was the subject of the contract while employed by the State.

The post-employment provision also prohibits disclosing or otherwise using
confidential information gained while a State employee. 29 Del. C. §
5805(d). In designing the contract program, the type of information the
employees worked with as State employees would not be used, nor would they
disclose any confidential information. (Commission Op. No. 96-73).

Computer Services Contract

A former State employee asked if it would create a conflict for him to form
his own company and seek State contracts. He would not seek contracts with
his former agency, but wanted to seek contracts with other State agencies,
including a Board on which he had served.

The post-employment provision restricts State employees from representing a
private enterprise on matters involving the State, for 2 years after
leaving State employment, if they: (1) gave an opinion; (2) conducted an
investigation; or (3) were otherwise directly and materially responsible
for the matter while employed by the State. 29 Del. C. § 5805(d).

Here, he intended to represent a private enterprise (his company) on a
contract to provide computer services to various agencies. While employed
by the State, he was not involved in any decision concerning the contracts.
Thus, while employed by the State, he did not give an opinion, conduct an
investigation, and was not otherwise directly and materially responsible
for the particular contracts he wanted to seek.

On a broader level, his primary State duties included various
administrative and operational decisions for his agency, which included
implementing operational aspects in areas of personnel, finance, payroll,
etc., that resulted in computer programs to facilitate and expedite access
to the data for his agency. Computer systems were not a technical
requirement of his employment, but an area of interest to him and he used
that interest to develop and improve operations in his agency. However, as
he was not seeking to contract with his former agency, his activities did
not violate the Code of Conduct.

As a secondary aspect of his State employment, he served on the Board of
Managers of an agency. At its periodic meetings, the Board had discussions,
over a course of twenty years, about computer systems as a means of
enhancing the flow of information. However, the Board never took formal
action and he never voted on any proposal to develop such a system. He
subsequently learned, by reading the Budget bill, that the agency was
seeking proposed funding for a computer system. He was not involved in the
budget proposal and, in fact, was not even aware until he read the proposed
budget that funding was being sought. If the funding became available, the
contract would fall within the range of contracts which must be publicly
noticed and bid under the State procurement law. As he did not have any
involvement, or even knowledge of the proposed funding, it was determined
that he had not given an opinion, conducted an investigation, and was not
directly and materially responsible for the funding for the contract. Thus,
it would not violate the Code for him to seek the contract if it were
funded.

The former employee also stated that one of his business partners had a
contract with his former agency as an independent contractor. The former
employee's firm would not be working on any aspect of his partner's
contract, nor would he seek to recruit programmers to fulfill the
contractual obligations.

As the former employee would not contract with his former agency, and would
not be involved in the agency's contract work with his business partner,
the Commission found no violation. (Commission Op. No. 96-32).

Former Employee's Participation in Selecting His Replacement

When a State employee decided to leave State service, his agency announced
an opening for the position. No replacement was found before he left State
service, and his job was re-announced. The agency wanted to contract with
him to be part of a three-person panel which would review and rank the
applications of persons applying for his prior position. State employees
who applied for the job had not been under the supervision of the former
employee. The agency expected the task to take two days, and wanted him as
part of the panel because of his expertise in both computer and finance
systems. He and the panel would review and rank the applications, but would
not interview candidates, as a separate panel would conduct the interviews.

The Commission found that he had not: (1) given an opinion; (2) conducted
an investigation; or (3) been directly and materially responsible for the
"matter" [reviewing job applications] while employed by the State, except
the single occasion when he had decided to leave State service and reviewed
the applications after the first announcement of the job opening. He had
not reviewed and ranked job applicants while employed by the State; had not
evaluated the State applicants who applied for the job while employed by
the State; would not interview candidates; and would use his expertise to
evaluate applications. (Commission Op. No. 96-43).

From Social Work to Computers

A computer company offered a former State social worker a job. The company
had a contract with her former State agency.

The Commission held that her employment by the computer company would not
violate the post-employment provision as she had not given an opinion;
conducted an investigation; and was not directly and materially responsible
for selecting the contractor or developing the contract requirements, while
employed by the State. See, 29 Del. C. § 5805(d). She used the computer
system provided under the contract for the ministerial work of tracking
clients. However, the type of activity for which she was directly and
materially responsible was not the ministerial tracking of cases, but
fulfilling the job requirements of a social worker. Those responsibilities
were dissimilar to the employment with the private enterprise, as she would
work in the systems end of the computer program. While her general
knowledge of the agency's needs might help to develop computer
requirements, the Commission found that such general background differed
from the particular duties for which she was directly and materially
responsible--evaluating the needs of a particular client and making
decisions such as whether intervention was necessary. The Commission held
that moving from the operational area of direct services to families into a
computer systems position, with no contact with her former clients, would
not violate the post employment provision. (Commission Op. No. 96-46).

Limited Waiver Granted on Post-Employment Restrictions

A State employee was a Training Administrator in the Division of Mental
Retardation (DMR). In addition to other duties, she served in the lead
capacity for the "Essential Lifestyle Planning" (ELP) project, which had a
goal of restructuring the way DMR provides support and services to clients.

She wanted to leave full-time employment because of injuries suffered in an
accident. It was possible that the agency might need her expertise on the
ELP project. An agency representative said he supported her waiver request
due to the unusual circumstances of her accident, and because it would give
the Division the option of contracting with her if it needed her expertise
on the ELP program. He said the Division would follow all State guidelines
on competitive bidding.

A former employee may not represent or assist a private enterprise on
matters involving the State, for two years after leaving State employment,
if the individual: (1) gave an opinion; (2) conducted an investigation; or
(3) was otherwise directly and materially responsible for the matter while
employed by the State. 29 Del. C. § 5805(d). As her employment by the State
included work on the ELP program and she wanted to seek a contract on that
same matter, if the Division sought a contractor for the work, her
participation in such contract would violate the post-employment provision.

The Commission may waive Code of Conduct restrictions if the literal
application of the law is not necessary to serve the public purpose or if
there is an undue hardship on the employee or the agency. 29 Del. C. §
5807(a). If a waiver is granted, the proceedings become a matter of public
record. 29 Del. C. § 5807(a). The Commission granted a waiver for the
limited purpose of allowing the agency to have the option of contracting
with her, if it decided it needed her expertise in the limited area of the
ELP process. (Commission Op. No. 96-60).

Managing Computer Technicians

The Director of a State agency left his employment and accepted a
fellowship position with a federal agency. At the end of the fellowship, he
was offered a job by a computer firm which had won a competitive contract
with Delaware to provide a tracking program for a case management system.
The company also had a contract with another State. It wanted him to manage
the technicians who would be putting together the programs for Delaware and
the other State. The contract was not with his former agency.

While employed by the State, he served on a Committee which developed
guidelines for the State agency which later contracted with the company. He
said it was possible that the Committee discussed a computer tracking
system, but he had no specific recollection of such discussion and was not
aware of any specific Committee action regarding such systems. The former
employee was not involved in any facet of the contract or in selecting the
company, as he had left State employment and therefore was not serving on
the Committee at the time of the contract.

As he was not in any manner involved in the specific contract while
employed by the State and as the private employment would consist of
managing computer technicians, which was not part of his responsibilities
while employed by the State, the Commission found that he had not given an
opinion, conducted an investigation and was not directly and materially
responsible for the matter while employed by the State. 29 Del. C. §
5805(d). (Commission Op. No. 96-65).

Limits on Post-Employment where Company Contracts with Former Agency

A former State employee went to work for a company which had projects
regulated by his former agency. While employed by the State, he had
reviewed and approved some projects. If he worked on those projects for the
private employer, he would be representing or assisting a private
enterprise on matters in which he gave an opinion while employed by the
State. Such activity would violate the post-employment restriction.

However, the private company said it had other projects he could work on
which the State did not regulate. Participation in those projects would not
violate the post-employment provision. Additionally, the company had
projects which he did not review and approve while employed by the State.
On those projects, he was expected to have contact with his former agency.
The Commission held that as he was not representing his employer on matters
which he reviewed while in his official capacity, his participation would
not be prohibited. In reaching that decision, the Commission relied on
Beebe v. Certification of Need Appeals Board, Del. Super., C.A. No.
94A-012-004, Terry, J. (June 30, 1995), aff'd, No. 304, Del Supr., Veasey,
J.(January 29, 1996) (former member of Health Resources Management Council
did not violate the post-employment restrictions when he represented a
private company on an application before the Council as he had not reviewed
the application while serving on the Council). (Commission Op. No.
96-71(B)).

Insufficient Facts

A State employee's duties entailed not only working on computer systems,
but planning, designing, etc. He also wrote bid specifications, evaluated
bids, gave opinions on the abilities of contractors to perform the
contracts, participated in selecting vendors, etc. He was actively engaged
in those activities until 1994. Later, his participation in contractual
aspects was reduced. In 1996, two computer companies offered him
employment. One company did not have a contract with his State agency, but
it was expected to bid if the agency re-bid the contract. The other company
had a State contract with his agency. However, he had not participated in
that contract decision.

(A) The Company With a State Contract

The Commission found that there were insufficient facts to decide if his
participation in the contract would violate the post-employment provision.
Clearly, in the past, he had participated in decisions on contracts on
which this company bid. However, in later years he did not participate in
contract decisions. If the subsequent contracts were mirror images of the
ones in which he participated, then it was possible the contract could be
one on which he gave an opinion or was otherwise directly and materially
responsible. But if the contract on which the company wished him to work
was substantially different, it may not be one on which he gave an opinion
or was otherwise directly and materially responsible. Without such specific
facts, the Commission could not issue a final decision.

(B) The Company without A State Contract

While the other company did not have a State contract with his former
agency, he anticipated that if the agency re-bid the contract the company
might respond to the request for bidders. If it responded, it was possible
that it might be selected. Conversely, it was possible that the agency
might not re-bid the contract; the company might not respond if the
contract were re-bid; and it might not be selected if it did respond to a
re-bid. If the latter occurred, it was possible that he might go to work
for the company but have no occasion to represent or assist it before the
State within the two-year period.

If the contract were re-bid, the contract terms were not known at this
time. Those terms could effect whether the contract would be a "matter" on
which he gave an opinion, conducted an investigation or was otherwise
directly and materially responsible. 29 Del. C. § 5805(d). The Commission
pointed to a federal case where a former federal employee was working for a
private enterprise on a contract which was a mirror image of a contract he
drafted, negotiated, etc., while employed by the government. See, United
States v. Medico, 7th Cir., 784 F.2d 840 (1986)(a mirror image contract was
the same "matter" on which a federal employee worked on during his federal
employment and therefore participation on behalf of a private enterprise
violated the federal post-employment law). Participating in a mirror image
contract might violate the Delaware post-employment provision. However, if
the contract sufficiently differed from contracts worked on while employed
by the State, it might be possible that the activity would not violate the
Code. See, CACI, Inc. v. United States, Fed. Cir., 719 F.2d
1567(1983)(federal employee was chief of computer section and contracted
with private vendors; as part of his post-employment activities, he
represented a company which bid on a contract with his former agency;
federal court held that the contract was not the same "matter" because the
contract was broader in scope, different in concept and incorporated
different features than contracts he worked on during his government
employment).

.

(C) Restrictions on Using Confidential Information

The post-employment restrictions also prohibit improper disclosure or use
of confidential information gained while employed by the government. 29
Del. C. § 5805(d). The Commission noted that the State employee said
proprietary systems were "out there," and that he had been involved in
contract negotiations for the State with various computer companies. It
pointed out that even where a contract is subject to public notice and
bidding, some information may be confined to closed hearings. See, 29 Del.
C. § 6919. Also, trade secrets, and commercial or financial information
obtained which is of a privileged or confidential nature, is not to be
disclosed. See, 29 Del. C. § 10002(d)(2). The Commission cautioned the
employee that if he accepted either job, he was not to improperly disclose
or use confidential information that he may have gained from his public
position. (Commission Op. No. 96-74).

Contract with Former Agency, But Not Same Agency Section

A private company hired a former State employee 22 months after she left
State employment. The private employer had a contract with the agency for
which she had worked. She was not involved in the contract negotiations;
did not work in the same section that entered the contract; and her State
duties did not involve testing, which was the subject matter of the
contract. Her private employment would require her to coordinate
scheduling/testing with the same department for which she had worked.
However, those activities were not done by the same section where she had
worked and she would be at a different site location. Based on those facts,
it did not appear that she gave an opinion, conducted an investigation, nor
was she directly and materially responsible for either the contract with
the company or the subject matter thereof, while employed by the State.
See, 29 Del. C. § 5805(d).

She advised the Commission that her private employment would not be such
that any confidential information she may have obtained while working for
the State would be improperly disclosed or used for personal gain or
benefit. (Commission Op. No. 96-44 (II)).

What's a "Matter" under the Post-Employment Provision?

A State employee obtained an advisory opinion from the Commission regarding
his post-employment activities. See, Commission Op. No. 96-32, "Computer
Services Contract," pp. 33-34, supra. He had asked if it would violate the
post-employment provision if he sought contracts with State agencies. He
was not attempting to contract with his former agency. The Commission held
that his proposed activities did not violate the Code.

Once he submitted bids on contracts, the agencies asked to the Commission
to review the situation. It asked the Commission to focus on the meaning of
"matter" and the meaning of "confidential information," in the
post-employment provision.

That provision restricts State employees from representing or assisting a
private enterprise on any matter involving the State, for 2 years after
terminating employment, if he: (1) gave an opinion; (2) conducted an
investigation; or (3) was otherwise directly and materially responsible for
such matter in the course of his official duties. 29 Del. C. §
5805(d)(emphasis added). The provision also provides: "Nor shall any former
State employee, State officer or Honorary State official disclose
confidential information gained by reason of his public position nor shall
he otherwise use such information for personal gain or benefit." Id.
(emphasis added).

"Matter" means "any application, petition, request, business dealing or
transaction of any sort." 29 Del. C. § 5804(6). "Confidential information"
is not defined by the Code.

At the hearing, an agency representative noted that "matter" is "fairly
broad," and wanted to know: "Is it the same matter even though it's not the
same contract, but it's a similar process?" Putting that question in the
context of this case: Is the "matter" (providing computer services to other
agencies) the same "matter" for which he was responsible while employed by
a different agency since the "process" of developing computer programs is
similar? And does understanding the "process" constitute "confidential
information"?

(A) Approach to Interpreting the "Matter"

Under the Delaware rules of statutory construction, words and phrases are
to be read within their context and the construction should be consistent
with the manifest intent of the General Assembly. 1 Del. C. § 303 and §
301.

In the Code of Conduct, the broad intent of the General Assembly is
expressed in its "Legislative findings and statement of policy." See, 29
Del. C. § 5801. The General Assembly said that the conduct of State
employees and officers must hold the respect and confidence of the public,
which is achieved by following "specific standards" of conduct. 29 Del. C.
§ 5802. It went on to say that: "all citizens should be encouraged to
assume public office and employment, and that therefore, the activities of
officers and employees of the State should not be unduly circumscribed." 29
Del. C. § 5802(3).

To assure that these findings and policy considerations are applied with a
fair understanding of such legislative intent, the General Assembly was
careful to provide specific standards to determine whether proposed
post-employment activities are permitted. Thus, the "matter" in the
post-employment provision must be one in which the former employee: (1)
gave an opinion; (2) conducted an investigation; or (3) was otherwise
directly and materially responsible. See, 29 Del. C. § 5805(d).

The Commission then considered cases analyzing the term "matter" in the
federal post-employment provision, which is similar to Delaware's
provision. See, United States v. Medico, 7th Cir., 784 F.2d 840, 842
(1986); CACI, Inc. v. United States, Fed. Cir., 719 F.2d 1567 (1983). In
those cases, the federal statute restricted former employees from acting
"as agent or attorney for anyone other than the United States in connection
with any . . . contract, claim, . . . or other particular matter . . . in
which he participated personally and substantially as an officer or
employee." Medico at 842. (2)

The Medico Court spoke at length about the purpose of the post-employment
provision and how that affects the definition of "matter." Id. at 842-843.
It said that moving between government and private employment creates a
risk of a conflict of interest--that people who hope to move to the private
sector will favor firms they think may offer rewards later and after they
switch to the private side may exercise undue influence on those they leave
behind. Id. at 843. On the other hand, the chance to move from private to
public employment and back again may enable the government to secure
skilled people who are unwilling to make public service a career at current
pay rates. Id.

The Court stated:

"The government can hire people for less, and attract specially skilled
agents, if it allows them to put their skills to use later for private
employers. It is therefore important to define 'particular matter' broadly
enough to prevent disloyalty without defining it so broadly that the
government loses the services of those who contemplate private careers
following public service." Id.

The Court said those concerns were addressed by the manner in which the
statute was drafted. Id. The court noted the "discrete and isolated
transactions" which trigger the prohibition. Id. It said the limits of the
statute must be put together. Id. The court pointed out the triggering
factors are whether the "matter" is the same "matter" and whether the
former employee participated "personally and substantially." Id. It said
that even where the subject is the same, the facts must overlap
substantially. Id. Similarly, Delaware's law has triggering factors--the
"matter" must be the same "matter" in which the former employee: (1) gave
an opinion; (2) conducted an investigation; or (3) was otherwise directly
and materially responsible. 29 Del. C. § 5805(d). The decision on whether
the Delaware code factors are triggered is based on comparing the factual
"matter" on which the employee worked, and the factual "matter" of the
proposed post-employment and whether the two overlap. See, Commission
Opinions on Post-Employment.

In Medico, the facts overlapped substantially because the former employee
represented a company before his former agency on a contract that was a
mirror image of a previous agency contract that he negotiated. Id. at 842
and 844. The Court held the "matter" was the same and "nothing more was
required." Id. at 844.

By way of contrast, the Medico court pointed to another federal case where
the subject was the same but the facts did not substantially overlap. Id.
at 843 (citing CACI, Inc. v. United States, Fed. Cir., 719 F.2d 1567
(1983). In CACI, a federal Department of Justice (DOJ) employee was Chief
of the computer section that provided services to a DOJ division. Id. at
1570. When the computer staff could not supply services, private
contractors did so through noncompetitive contracts. Id. While employed by
the DOJ, the Chief "contemplated" obtaining the services through
competitive contracts. Id. at 1576. After he left government service, the
DOJ issued a Request for Proposals (RFP) for the computer services. Id. at
1570. The Chief, now a former employee, helped prepare a company's response
to the RFP and represented the company before his former agency. Id. An
unsuccessful bidder challenged the contract award on the basis that, among
other things, the post-employment provision had been violated. The lower
court held that the prior data processing contracts and the current
procurement contract were part of the same particular "matter." Id. at
1576. However, the Appellate Court reversed that decision, holding that
they were not the same "matter" because the former employee had not
developed the concept or formulated the RFP, and the contract was broader
in scope, different in concept and incorporated different features than the
prior contracts. Id. It noted that the new contract was to consolidate
services, eliminate redundant services, improve management control, provide
new services, include some services under the old contract and exclude some
services provided under the old contract. Id. Thus, the CACI court, like
the Medico court, looked at a specific, identifiable "matter."

Like the federal courts, the Delaware Superior Court looked to the
particular matter on which a former State official was representing a
private enterprise, rather than a process, to decide if the post-employment
provision applied. Beebe v. Certificate of Need Appeals Board, Del. Super.,
C.A. No. 94A-01-004, Terry, J. (June 30, 1995). In Beebe, a former member
of the Health Resources Management Council represented a company before the
Council on a certificate of need (CON) request. Id. at 17. In his
introductory remarks, he said that he had served on the Council for five
years. Id. It was argued that his representation of the company violated
the post-employment statute. Id. The Court found that while he was a
Council member, he participated in reviewing CONs; however, the record
showed that he did not take part in reviewing the two applications being
considered by the Council. The Court held that "since he appeared before
the Council in a matter for which he had no direct and material
responsibility while on the Council, he did not violate the statute." Id.
(emphasis added).

Here, the "matter[s]" on which the Delaware former employee wants to
represent a private enterprise are contracts to provide computer services
to two agencies. Those contracts, like the ones in CACI, were not concepts
or proposals he developed. The contracts require developing programs based
on the specific agency needs to eliminate redundancy, improve control,
provide new services, and integrate or exclude existing computer services
as needed.

Unlike the Medico contracts, they are not mirror images of each other, and
no facts indicated that they mirror any of his former agency's computer
system. That system was developed for his former agency's specific needs
and the other two agencies have identified the