Filing Number: 09-02
Subject: Complaint
Keywords: appearance of impropriety, complaint, conflict, construction, contractor, employee, family, financial interests, impropriety, recommend, recusal, spouse, supervisor, undue influence, unwarranted privilege
Decision By: Commissioners: Thomas P. Collins, Edward Danberg, James Keeley, V. Eugene McCoy, Gerald Turkel
Contact Email: admin@nccethics.org
 
Status: Active

Order:

            A complaint alleged that the subject violated the Ethics Code by using the authority of his office to obtain personal benefit or gain and that his conduct undermined public confidence in the impartial operation of his County department. Immediately after becoming the subject of a disciplinary action, the complainant alleged that his supervisor asked him for references for contractors during work hours on two occasions and that on one of those occasions the complainant felt compelled to contact the contractor on behalf of the supervisor. The complainant also stated that the supervisor once assigned him to inspect a project on which the supervisor's uncle was a subcontractor.
 
INVESTIGATION
 
First Allegation: The investigation revealed that on one occasion the supervisor's home was unexpectedly damaged in a storm during the work day and that the supervisor asked the complainant for a reference to a contractor who could immediately go to the residence and make a repair to prevent further damage. The complainant volunteered to contact a contractor on behalf of the supervisor, who was unable to defer his own County work to handle the emergency. The supervisor paid market rate to the contractor for the repairs. The supervisor stated he did not know who to call because it was his policy to keep contractors "at bay" because of potential conflict issues as a result of his position with the County. The complainant did not identify any coercion or pressure causing him to volunteer his assistance to the supervisor other than his recognition of the emergency nature of the event.
 
Second Allegation: The complainant was assigned to an inspection on a job involving a contractor with whom, unbeknown to the supervisor at the time, the complainant had a private relationship. During work one day, the supervisor commented that he was considering installing a new deck or patio. The complainant suggested a certain type of finish that was being used on his current inspection job and recommended and made an inquiry to the contractor. However, the contractor told the complainant that he was not doing that type of work any longer and the complainant reported this to the supervisor. Subsequently, the supervisor's wife got the names of three contractors from the phone book and the complainant unexpectedly offered a fourth name. All four contractors made bids and the supervisor selected the person recommended by the complainant. The supervisor denied the allegation that he used work time for private purposes to go with the complainant to look at the finish used on the inspection job. The complainant said he felt he was a friend of the supervisor at the time he offered the names of the contractors.
 
Third Allegation: A coworker who was at the same level as the complainant was acting as general contractor in the building of his own home. The coworker advised a department manager of this so that inspection duties for this project could be reassigned from his unit. The manager assigned the inspection duties to an administrator who worked under the supervisor. The administrator subsequently became very ill and died. Both the complainant and supervisor agree that no other parties with the requisite expertise to perform the inspections were available aside from the supervisor or the complainant. The supervisor assigned the complainant to the project. The complainant stated that no violations were found on his inspections. The supervisor did not recall ever asking about the inspections or the results. The complainant did not allege that the supervisor exerted pressure about the inspections but contended that he felt pressure because of the relationships involved.
 
ETHICS CODE PROVISIONS
 
            It is a violation of the New Castle County Ethics Code for a County employee or official to use his or her County authority to obtain a personal benefit. See, sec. 2.03.103A. Nor may a County employee or official use his County office for unwarranted privilege or gain. See, sec. 2.03.104D. Finally, a County employee or official may not "engage in conduct which, while not constituting a violation of [the conflict of interest rules], 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 an appearance that the decision of actions of the County employee or County official or governmental body are influenced by factors other than the merits." See sec. 2.03.104A.
 
            The Ethics Commission has long applied the standard for judging such conduct which is described in the 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. Id.
 
STANDARD OF PROOF
 
            The burden of proof regarding a determination of whether a violation of the Ethics Code has occurred is the "clear and convincing" standard recited in Code sec. 2.04.103F. The clear and convincing standard has been defined by the Delaware Supreme Court as: "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).
 
CONCLUSION
 
            The evidence supporting the allegation that the subject used his official authority for personal benefit or unwarranted privilege or gain regarding the contractor referrals does not meet the standard of "clear and convincing" proof. Pursuant to the specific facts uncovered in this investigation, the allegation that the subject's assignment of the complainant to the coworker's project created an appearance of partiality is not substantiated.
 
            The complaint is DISMISSED.
 
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION THIS 13th DAY OF JANUARY 2010.
 
_______________________________
Thomas P. Collins, Chairperson
 
Decision: Unanimous