Filing Number: 06-04
Subject: Ethics Code Complaint
Keywords: appearance of impropriety, candidate, County official, elected official, financial interests, fundraising, political contribution, representation, sponsor, State of Delaware
Decision By: Commissioners: John McMahon, Thomas P. Collins,Sr., Miguel Gonzalez, Mark Murowany, V. Eugene McCoy
Contact Email: admin@nccethics.org
 
Status: Active

Order:

COMPLAINT
 
            The Ethics Commission received a complaint contending that a County official (hereinafter "the subject") committed three Ethics Code violations: that the subject violated State campaign finance laws in filing an allegedly inaccurate finance report with the State of Delaware; that the subject represented a personal private interest in his official capacity by arranging a meeting between a litigant of the County and the County Administration; that the subject created an appearance of impropriety by sponsoring, advancing, and voting on a land use matter a short time after accepting political contributions from the interested landowner and his family.
 
CONCLUSION
 
            The Commission is without jurisdiction to investigate the complaints concerning the accuracy of the subject's financial reports to the State of Delaware and the subject's conduct in arranging a meeting to resolve pending County litigation. Claims about the accuracy of reports required to be filed with the state must be made to the appropriate state agency. As to the latter contention, the public record demonstrates that no factual basis for a conflict of interest or improper appearance exists in relation to the allegation regarding the County litigation meeting. The Commission investigated, and now dismisses, the contention regarding the political contributions. The Commission finds that the unique surrounding circumstances regarding the land use matter - mandatory default sponsorship pursuant to a written rule, a substantively duplicate ordinance which had been previously reviewed by the Land Use Department, and an absence of evidence of contact with the proponents of the ordinance regarding the ordinance's subject matter prior to the vote -- would not lead a reasonable person to believe that the subject created an appearance of unfairness or lessened public confidence in the impartiality of County government by sponsoring and voting on a land use measure shortly after accepting lawful campaign contributions from interested parties.
 
SUBSTANTIATED FACTS
 
            The New Castle County Ethics Commission does not have authority to determine whether campaign finance reports filed with agencies of the State of Delaware are accurate or complete. Such determinations must be made by the appropriate state agency. If such a report filed by a New Castle County officer or employee is determined to be intentionally inaccurate by the relevant state agency, a claim of violation of the New Castle County Code may be filed.
 
            Complaints to the New Castle County Ethics Commission must state a reasonable claim of violation of the Ethics Code if proven. If the public record demonstrates that a complaint is factually incorrect, the Commission is without authority to investigate. In this case, the subject did not have the alleged personal relationship with a party arguably interested in the litigation.
 
            The allegation of improper official conduct after accepting a political contribution states a reasonable violation of the Ethics Code if proven and the Commission opened an investigation. The investigation revealed that on September 19, 2005, lawful political contributions of $300.00 each from a landowner and one of his relatives were accepted by the subject's political committee. The record also shows that that the campaign contributions were properly disclosed to the State of Delaware in a 2005 year-end campaign finance report.1
 
            In July, 2004, the landowner who made the contribution had been the applicant for rezoning (hereinafter "2004 ordinance) sponsored by the relevant district councilman. That ordinance completed review by the Land Use Department and received a negative recommendation on September 21, 2004. After it had been introduced in Council, the district councilman was advised by the Ethics Commission to withdraw his sponsorship because of a conflict of interest.2 He did so in October, 2004, and, pursuant to then Council Rule 17.B (currently Rule 3.1.2), the sitting Council President automatically became sponsor of the rezoning measure since the district Councilman was disqualified. The ordinance was withdrawn in October, 2004.
 
            County rezoning ordinances are enacted only three times a year, in the months of October, February and June. On September 27, 2005, a substantive duplicate of the 2004 ordinance was introduced to Council (hereinafter "2005 ordinance"). It was sponsored pursuant to Council Rule 17.B because of the district councilman's continued disability. It is unclear whether the 2005 ordinance was referred to the Land Use Department but no vote or subsequent recommendation was forthcoming from that department. On October 11, 2005, the 2005 ordinance was approved by Council, on a 10 to 2 vote, with one recusal.
 
            The attorney for the landowner stated that he never spoke to the subject about either the 2004 or the 2005 ordinance. He also said he did not believe that the applicant spoke to the subject about either ordinance. The district councilman who had recused himself stated that he did not speak to the subject regarding the ordinance. The subject stated that he first became aware of the ordinance on September 27, 2005, when it was introduced. He stated he was not aware of it at the time of the fundraiser. The subject stated that he did not discuss either of the ordinances with the landowner or his representatives prior to the vote.
 
            The subject stated that the 2005 ordinance was not given special treatment in being voted upon at the earliest procedural opportunity and without Land Use consideration because the Council Attorney had indicated that the 2005 ordinance was ready for vote because the identical matter had completed the Land Use and Planning review process approximately one year prior to the vote. Correspondence between the Council Attorney and the County administration tends to support those assertions.
 
            There is no allegation or evidence uncovered indicating that the ordinance had any beneficial or detrimental affect on the subject or his family's financial interests in any way different from other County residents.
 
RELEVANT ETHICS CODE PROVISIONS
 
            The conflict of interest rule recited in New Castle County Code Section 2.03.103(A) restricts the use of official authority by a County official or employee:
 
A.     Restrictions on exercise of official authority.
1.     No County employee or official knowingly or willfully shall use the authority of his or her office or employment or any confidential information received through his or her holding County office or employment for the personal or private benefit of himself or herself, a member of his or her immediate family or a business with which he or she is associated. This prohibition does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the County official or employee, a member of his or her immediate family or a business with which he or she or a member of his or her immediate family is associated. There will be a rebuttable presumption of a knowing or willful violation of this section if the action benefits the County official or employee, his or her spouse, or his or her dependent children (whether by blood or by law).3
 
2.     In any case where a person has a legal and/or statutory responsibility with respect to action or nonaction on any matter where the person has a personal or private interest and there is no provision for the delegation of such responsibility to another person, the person may exercise responsibility with respect to such matter, provided that promptly after becoming aware of such conflict of interest, the person files a written statement with the Commission fully disclosing the personal or private interest and explaining why it is not possible to delegate responsibility for the matter to another person. If the matter is one in which the legal and/or statutory responsibility requires the person to vote upon the issue, the written statement filed with the Commission shall be read into the public record prior to the time the person's vote is cast. Any person choosing to abstain from voting on an issue where [he] or she has a conflict shall state the reasons for his or her conflict on the record; an abstaining voter need not file the written statement with the Commission required when acting on, rather than abstaining from, an issue involving a conflict.
 
            An appearance of impropriety can exist even where there is no conflict of interest and no wrongdoing on the part of an employee or official. Section 2.03.104A states:
 
No County employee or County official shall engage in conduct which, while not constituting a violation of Section 2.02.103(A)(1) [Conflict of Interest], undermines the public confidence in the impartiality of a governmental body with which the County employee or County official is or has been associated by creating a appearance that the decision or action of the County employee, County official or governmental body are influenced by factors other than the merits.
 
            The standard for judging appearance of impropriety for judicial public officials has been described in Delaware courts as "conduct [which] would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the official's ability to carry out [official duties] with integrity, impartiality and competence is impaired." In re Williams, 701 A.2d 825, 832 (Del. Super. 1997). In determining the relevant circumstances, the courts advise the Commission to look at the totality of facts. The Commission believes that standard is equally applicable to the conduct of County officials and employees.
 
RULING
 
            The Ethics Commission is without jurisdiction to investigate the complaints concerning the accuracy of the subject's financial reports to the State of Delaware and the subject's conduct in arranging a meeting to resolve pending County litigation. The claims about the accuracy of reports required to be filed with the state must be made to the appropriate state agency. As to the latter contention, the public record demonstrates that a factual basis for a conflict of interest or improper appearance does not exist in relation to the allegation regarding the County litigation meeting. Finally, the Commission finds that the unique surrounding circumstances regarding the land use matter - mandatory default sponsorship pursuant to a written rule, a substantively duplicate ordinance which had been previously reviewed by the Land Use department, and an absence of evidence of contact with the proponents of the ordinance regarding its subject matter prior to the vote -- would not lead a reasonable person to believe that the subject created an appearance of unfairness or lessened public confidence in the impartiality of County government by sponsoring and voting on a land use measure shortly after accepting lawful campaign contributions from interested parties.
 
            THE COMPLAINTS ARE DISMISSED.
 
            BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON SEPTEMBER 12, 2007.
 
__________________________
John McMahon, Chairperson
 
 
Decision: Unanimous

Footnotes:

1 The subject stated that in preparing his fundraiser he used the lists filed by other candidates of persons who contributed to those other candidates' campaigns in the 2004 election cycle and invited everyone listed by the other candidates. He stated he did not scrutinize the name of every contributor on the list because he had a treasurer to do that. He stated that the invitations went out in August 2005, prior to the time he became aware of the 2005 ordinance. The invitations asked for a $100.00 contribution but noted prominently "If you are not in a position to make this contribution at this time, give what you can or come as ______'s guest."

2 See Advisory Opinion 04-11 (August 11, 2004). The question presented was whether an official's sponsorship and/or vote on a measure which directly affected a client of the official's spouse's created a conflict of interest or appearance of impropriety. The Commission found that although the spouse did not represent the client in the particular matter and there was no conflict of interest, an appearance of impropriety would arise from sponsorship and/or vote since a reasonable member of the public would believe that the official's sponsorship and/or vote was made to advance the spouse's business interests with that client. In accord with prior cited precedent, the official was directed to withdraw his sponsorship of the measure and recuse himself from deliberation and vote.

3 Section 2.03.102 Definitions, in pertinent part:

Business means any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit
. . . .

Business with which he or she is associated means any business in which the person is a director, officer, owner or employee; or a business in which a member of the person's immediate family is a director, officer, owner or has a financial interest.