Filing Number: 09-04
Subject: Outside Employment
Keywords: advertising, appearance of impropriety, complaint, conflict, constituent, contract, County official, final order, financial interests, impropriety, land use, legislation, outside employment, private business, representation, undue influence, vote, zoning
Decision By: Commissioners: Thomas P. Collins, Edward Danberg, James Keeley, V. Eugend McCoy, Gerald Turkel, Vincent White
Contact Email: admin@nccethics.org
 
Status: Active

Order:

COMPLAINT
 
            The Commission received a complaint of conflict of interest on the part of a County official alleging that he used his County status to secure income for his private business from a client which was opposed to a land use matter on which the official voted.
 
INVESTIGATION CONCLUSIONS
 
             A County official was the owner of a private management consulting business from 2006 through 2007. In late 2006 and 2007 the official contracted with several businesses which were located within and outside the official's area of County authority. The operation of the business was terminated in late 2008.
 
            In 2007, a land use project was proposed for open space in the official's area of authority. The project was proposed to include a type of business which would have been a direct competitor to one of the clients of his private business. In late 2007, the official publicly opposed the land use project on the basis of inconsistency with the New Castle County Unified Development Code and traffic congestion. A significant number of area businesses and civic groups also publicly opposed the project on similar grounds.
 
            The representative of the client who would have been affected by the competition stated that in early 2007 his business entered into one year contract with the official's business to advertise and market his business's services and that no quid pro quo for use of the official's County authority was involved. The representative stated that the official told him that if a conflict developed the official would recuse himself from voting in any conflicting matter. The representative reported that he did not renew the contract because he found no improvement in sales from the marketing facilitated by the official. The official reported that the business relationship had no affect on the conduct of his public office.
 
            In mid 2008, the News Journal publicized the fact that the developer dropped the direct competitor from its proposal.
 
            The land use matter has not come before the official for vote.
 
APPLICABLE LEGAL STANDARDS
 
Conflict of Interest
            New Castle County Code Section 2.03.103A, in pertinent part, prohibits County employees or officials from "knowingly or willfully [using] 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."
 
Standard of proof
            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 Sec. 4.3 (2000).
 
FINDING
 
            The Commission does not find clear and convincing evidence to support the allegation that the official used his County status for the benefit of an associated business and no evidence to support the allegation of an improper vote.
 
CONCLUSION
 
The Complaint is DISMISSED.
 
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION THIS 4th DAY OF NOVEMBER 2009.
 
___________________________________
Thomas P. Collins, Sr., Chairperson
 
Decision:  Unanimous
 
Reconsideration of language of Order granted November 4, 2009.
Decision on reconsideration reuest: Thomas P. Collins, Edward DAnberg, James Keeley, V. Eugene McCoy, Jerald Turkel, Vincent White
 
Original Decision on October 14, 2009: Unanimous by Thomas P. Collins, Edward Danberg, V. Eugene McCoy, Gerald Turkel
 
Reconsideration Decision on November 4, 2009: Unanimous by Thomas P. Collins, Edward Danberg, James Keeley, Eugene McCoy, Gerald Turkel, Vincent White