Filing Number: 07-03
Subject: Complaint
Keywords: appearance of impropriety, cash donation, code variances, conflict, constituent, construction, County official, Department of Land Use, developer, donor, elected official, final order, fundraising, State of Delaware, ticket, undue influence, variance, zoning
Decision By: Commissioners: John McMahon, Thomas P. Collins, Sr., Edward Danberg, Miguel Gonzalez; V. Eugene McCoy; Mark Murowany, Gerald Turkel
Contact Email: admin@nccethics.org
 
Status: Active

Order:

1.      A complainant alleged that the subject violated the appearance provisions of the Ethics Code by accepting campaign contributions from persons associated with certain property owners and a developer and subsequently sponsoring and voting upon an ordinance favorable to those persons.
 
2.     In November 2003 the property owners filed exploratory plans with Land Use for a low density project of single family homes.
 
3.      In October 2004 the two property owners made lawful contributions of $1200 to the subject for his campaign for County office.
 
4.     In November 2004 following the subject's election to office, the wife of the attorney for the developer associated with the property owners made a lawful contribution of $300 to the subject's campaign.
 
5.     These three contributions amounted to approximately 14% of the total receipts for the 4th quarter of the campaign.
 
6.     In April 2006, the 2003 low density project plan expired without further progress through the County Land Use Department process.
 
7.     In June 2006 the property owner filed a new exploratory plan for medium density age-restricted housing on the same land, which was located about a mile away from the nearest DART bus stop.
 
8.     In August 2006 an ordinance was filed proposing rezoning for the property owners' land to Suburban Transition [ST] status to enable the age-restricted medium density.
 
9.     The subject was the sponsor of the ordinance in accord with the rules for his position.
 
10.     One of the Uniform Development Code [hereinafter UDC] conditions for ST status was "access to public transportation", a phrase which is not defined in the Code and currently subject to varying interpretation by members of the Land Use department.
 
11.     The Land Use department imposed several conditions on the developer including a traffic study and compliance with an undefined "access to transportation".
 
12.     The Department withdrew the condition of traffic study in September 2006.
 
13.     In December 2006 the project was presented to the Planning Board with a positive recommendation by the Land Use Department.
 
14.     The Planning Board disagreed with the Land Use Department and recommended denial, citing the need for bus service within ¼ of a mile pursuant to the UDC.
 
15.     On December 6, 2006, the Land Use Department reported the results of the Planning Board hearing to Council but recommended that Council conditionally approve the rezoning if certain site changes were made and the developer "Secure[d] a letter from DART indicating how transit may be provided" to the project.
 
16.     The developer contacted DART and secured a letter dated January 24, 2007, in which DART indicated that it had only conceptual plans to place a bus stop closer to the project but agreed to "waive the requirement" in return for a payment of $5000 from the developer.
 
17.     On January 26, 2007, Charles Baker, Land Use General Manager, sent the documents relating to the zoning ordinance to Council, including the denial by the Planning Board and the letter from DART.
 
18.     In his cover letter recommending approval of the rezoning, Mr. Baker stated that DART "indicat[ed] that they have conceptual plans to eventually provide public transit service to the vicinity of the site" and that "the Department has determined that this proposal complies with all applicable requirements of the New Castle County Code".
 
19.     On February 20, 2007, the ordinance rezoning the land owners' property to ST passed unanimously.
 
20.     The Commission did not find any evidence that the subject or any of his family members discussed either the 2003 or 2006 plans with the owners, the developer, their attorneys, or his fellow elected officials.
 
21.     The subject's discussions with Land Use personnel took place at regular Land Use Department meetings and were relevant to his exercise of public office.
 
22.     The subject reported that prior to his vote on the 2006 project, neither he nor his family had any personal or business relationship with the property owners, the attorneys, or the developers.
 
23.     The subject stated he had no contact with either proponents of the project or concerned citizens before the vote and that he had been unaware of the existence of the 2003 plan until he learned of it from the News Journal in March 2007.
 
24.     The subject stated that he "relied upon completely" the Land Use Department's "expertise" in UDC matters and that the lawful contributions had no bearing on his vote.
 
25.     The Commission did not find that the subject, any member of his family, or any business with which he is or was associated had a financial interest related to the rezoning or to its proponents.
 
26.     A lawfully reported campaign contribution is not defined as a gift in the New Castle County Ethics Code and acceptance of the lawful contributions in this case had no temporal relationship to the subject's vote.
 
27.     The subject's conduct concerning the rezoning did not create an appearance that his vote was based upon anything other than the rules governing his office and the merits of the matter before him.
 
CONCLUSION
 
            In light of the facts uncovered in the Commission investigation, the allegation that the subject violated the appearance of impropriety provisions of the New Castle County Ethics Code by sponsoring and voting on a rezoning ordinance after accepting lawful campaign contributions from interested parties is not substantiated. The complaint is dismissed.
 
            BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION THIS 9th DAY OF APRIL 2008.
 
_________________________
John McMahon, Chairperson
 
Unanimous Decision

Footnotes:

1 DART personnel indicated to the Commission's investigator that the language of "waiver" in its January 24, 2007, letter was inappropriate since the State agency had no authority to waive any County regulation in this matter. DART defended but did not further define why it made a request for $5000.00 from the developer.

2 According to Land Use Department officials, the UDC encourages both the general goal of proximity to public transit as well as construction of age-restricted housing. A manager told the Commission investigator that if an ST project has the potential for future access to transit, that potential will satisfy the "access to transit" requirement of the UDC.