Filing Number: 08-03
Subject: Complaint
Keywords: appearance of impropriety, appointed official, confidentiality provisions, disclosure, elected official, employee, final order, impropriety, official business
Decision By: Commissioners: Thomas P. Collins, Sr., Edward Danberg, John McMahon, Gerald Turkel
Contact Email: admin@nccethics.org
 
Status: Active

Order:

             The Commission received an allegation that a County official ("subject") disclosed information deemed confidential by the Ethics Commission in violation of New Castle County Code Section 2.04.104J. When informed about the allegation, the subject denied it and urged the Commission to investigate. The Commission voted to investigate and the investigation was initiated on July 15, 2008, by notice to the subject.
 
            The disclosed confidential information concerned positions taken by a fellow County official during non-public meetings of a County entity that were deemed confidential by the New Castle County Code.
 
Investigation Conclusions 
            The subject had a long-standing friendship with a County employee ("employee") who had proffered the subject's name for the County appointment. An informant was present on several occasions when an elected official suggested and/or the employee volunteered to obtain confidential information about the non-public business of the County entity. The informant was present on several occasions when the employee reported confidential information back to the elected official which the employee said he obtained from the subject.
 
           The subject denied disclosing confidential information. The subject's credibility was affected by his failure to voluntarily cooperate with the Commission absent receipt of a subpoena, despite his request that the Commission investigate the matter and his duty to assist the Commission. The subject's credibility was affected by his failure under oath to remember noteworthy activities that occurred at a significant number of non-public meetings he attended. The subject's credibility was affected by contradictions that arose between his and the employee's statements. The subject's credibility was affected by contradictions that arose between his and the fellow County official's statements. The subject's credibility was affected by portions of his sworn testimony relating to the extent of his conversations with an elected official.
 
            The employee denied requesting or receiving confidential information from the subject but he vouched for the informant's general credibility. The employee's credibility was affected by the confidential nature of the information he was overheard relaying to the elected official.
 
            The fellow County official denied disclosing the confidential information to anyone who did not attend the non-public meeting.
 
Standard of proof and code requirements
            The burden of proof regarding a determination of whether a violation of the Ethics Code occurred is the "clear and convincing" standard recited in Code Section 2.04.103F. That standard has been defined by the Delaware Supreme Court as follows: "to establish proof by clear and convincing evidence means to prove something that is highly probable, reasonably certain, and free from serious doubt." Hudak v. Procek, 806 A.2d 140, 147 (Del. 2002). The Procek court also cited the Delaware Superior Court Pattern Civil Jury Instructions definition: "evidence that produces in the mind of the trier of fact an abiding conviction that the truth of a factual contention is highly probable." Id. at § 4.3 (2000).
 
            New Castle County Code Section 2.04.101G requires that the "votes of at least four (4) members present are required for any action or recommendation of the Commission other than minor procedural matters . . . ". New Castle County Ethics Commission Regulation 2.04.101G states that for "all matters, other than minor procedural matters, there must be at least four affirmative votes for the Commission to take any action or make any recommendation."
 
FINDING
 
            The four members of the Commission available to act on this complaint were not able to come to unanimous agreement. Therefore, pursuant to Code section 2.04.101G, no action can be taken and the complaint must be dismissed.
 
CONCLUSION
 
            The Complaint is DISMISSED without a finding.
 
            BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION THIS 10 th DAY OF JUNE 2009.
 
___________________________________
Thomas P. Collins, Sr., Chairperson
 
Decision: Thomas P. Collins,Sr., John McMahon, and Gerald Turkel for finding violation; Edward Danberg for not finding violation