Filing Number: 13-01
Subject: Complaint
Keywords: appearance of impropriety, clear and convincing evidence, County policy, County resources, final order, gambling, investigation, private advantage or gain, probable cause, sanction
Decision By: Unanimous Decision by: Johanna Bishop, Beatrice Patton Dixon, James Keeley, Paula Jenkins Massie, Christopher Simon
Contact Email: admin@nccethics.org
 
Status: Active

Order:

Complaint

The Commission received a complaint alleging that Jeffrey Stuart, an employee in the Office of Finance, was using County resources to conduct gambling operations, fantasy sports pools, and was observed receiving and paying out money regarding those operations in County facilities.  The Commission voted to open an investigation into that complaint on April 19, 2013.

Investigation

The investigation revealed that Mr. Stuart had been regularly administrating and participating in at least three fantasy football pools and one fantasy NasCar pool between 2011 and 2013 using New Castle County paid work time and County equipment including phones, computers, printers, and copy paper. 

Mr. Stuart admitted that as an employee of New Castle County on March 12, 2003, he received a memo issued to all employees that date stating that participating in “activity such as sports pools, illegal betting, or anything closely related” violated the County discipline policy prohibiting “participating in gambling on County property or during work hours.”  

New Castle County Personnel Policy number 4.06 (dated 7/1/05) advises at page 3 that “While incidental personal use of [computer] hardware and software is permissible, such usage must be fully in accordance with all other aspects of this policy and not interfere with the County’s needs or operations.  As used in this policy, “‘incidental use’ means occasional, personal use normally taking place during breaks or use outside of assigned work hours.”  . . .  Excluding incidental personal use, the County’s Internet access will be utilized only for activities in furtherance of assigned County business.”

New Castle County personnel policy number 1 (dated 06/18/07) advises at page 8 that an employee may be disciplined for  “17. Gambling offenses . . .  ;  18. The use of County supplies, materials, equipment, or other property for personal purposes or securing the same for others; 19.  Pursuing any non-job related activities during work hours without the permission of the general manager/row officer.”    

The investigation revealed that Mr. Stuart received an email dated September 24, 2010, from his supervisor reminding him that the County had a “no gambling” policy and that his daily and excessive involvement with fantasy football was affecting his work productivity and that his improper use of County time and equipment was observed by his coworkers.

Mr. Stuart admitted that in 2011, 2012, and 2013, as well as in earlier years, he conducted, participated in, profited from, and received and paid out monies in County buildings during work hours for fantasy sports leagues.

Eyewitness testimony confirmed that Mr. Stuart ignored his County duties on a number of occasions while conducting the administration of fantasy sports leagues in 2011, 2012, and 2013.

Mr. Stuart admitted that he received monetary compensation for conducting the aforementioned fantasy sport leagues from 2011 through 2013.  Eyewitnesses confirmed that he received from and paid out monies to other employee participants in a County building during work hours in relation to his operation of the leagues.  Documents obtained from the electronic record on Mr. Stuart’s assigned County computer and from a County printer show that he recorded fees owed to him and/or that he received financial compensation.

Mr. Stuart admitted that on a number of occasions he used his County assigned computer during work hours to record information on the internet site he maintained for the fantasy sports leagues.  He admitted that he regularly monitored the fantasy sports leagues and their records on his County assigned computer for extended periods during the work day, sometimes exceeding 5 hours a day.  Eyewitnesses confirmed that his computer regularly displayed the sports league material.

Mr. Stuart admitted that he used a County owned printer and copy paper to reproduce information from his County assigned computer during work hours relating to the sports leagues.  Numerous documents obtained from the electronic record maintained by Mr. Stuart’s assigned County computer and from a County printer show that he used those pieces of equipment regarding the fantasy sport leagues on a frequent basis.  Eyewitnesses confirm his regular use of his assigned computer and printer for purposes related to the fantasy sport leagues during work hours and confirm that his use of the County printer for personal purposes related to the fantasy sport leagues caused delays for coworkers in performing County business.

Mr. Stuart never requested permission to conduct personal business during work hours related to the fantasy sports pools.

Mr. Stuart admitted that he was not truthful with the County Human Resources department personnel who investigated his activity on County premises and the use of County resources in relation to the fantasy sports pools. County documents indicate that he told County Human Resources department personnel that he never accepted or exchange money for the fantasy sports pools on County premises, that he did not use County equipment or County-paid internet services during work hours in regard to the leagues, and that he did not receive compensation as leader of the fantasy sports pools.

Probable Cause Report

Following the investigation, on January 8, 2014, the Commission determined that probable cause existed to believe that Mr. Stuart violated the New Castle County Code of Ethics by regularly using his County computer and County equipment to participate in and conduct fantasy sports pools and used his County position to secure unwarranted monetary and personal private gain.

            In accord with New Castle County Code Section 2.04.103G, the Commission notified Mr. Stuart by certified mail on January 13, 2014, that it found probable cause to believe that he violated the Ethics Code.  The confidential probable cause report detailed, by numbered paragraphs, the evidence the Commission relied upon to reach its conclusions.  Copies of the relevant Code sections were provided with that report.

Mr. Stuart did not respond to the probable cause report within 30 days as required by Section 2.04.103G of the Code and the Commission granted him an extension until March 7, 2014, for this purpose.  He did not respond to the report as required on or before March 7 and did not request a hearing.

Ethics Code Provisions and Standard of Proof

New Castle County Code Section 2.03.104, Subsection A, prohibits a County employee from engaging in conduct which, while not constituting a violation of Section 2.03.103(a)(1) [conflict of interest], undermines the public confidence in the impartiality of a governmental body with which the County official is or has been associated by creating an appearance that the decisions or actions of the County official or governmental body are influenced by the factors other than the merits.

            New Castle County Code Section 2.03.104(D) concerns the use of public office to advance a private interest or gain: “(D)” No County employee or County official shall use such public office to securfe unwarranted privileges, private advancement or gain.”  The Commission has stated that Section 2.03.104(D) means an official or employee “cannot use County communication equipment or computers, letterhead, county paid postage printing facilities, or county staff for purposes other than official business,” excepting the incidental use permitted under New Castle County Personnel Policy 4.06.  Advisory Opinion 10-01 and 10-02.  

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.  The clear and convincing 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.”

Findings of Fact and Law

On March 12, 2014, the Commission found that that the evidence demonstrated that from at least 2010, Mr. Stuart conducted and participated in prohibited sports pools during County work hours despite prior warnings from superiors about such conduct, that he used County resources for his private gain and impacted County business by doing so, that he exchanged money related to the fantasy leagues in the County facilities, that he financially profited from conducting the leagues, and that he was untruthful when questioned by superiors about the conduct of his fantasy sports operation. The Commission determined that the evidence was clear and convincing that Mr. Stuart’s conduct violated Ethics Code Sections 2.03.104A and D by undermining public confidence in County government because his ability to carry out his official duties with integrity, impartiality, and competence was impaired and that he used his public office to secure private gain.

Sanction

            Mr. Stuart’s repeated and continuous misuse of County resources for his fantasy sports business and the use of his status as a County employee for private gain were intentional acts, performed in knowing disregard of the adverse effect of that conduct on public confidence in the integrity of County government.   His deliberate dishonesty in the administrative investigation further erodes public confidence in his integrity as a public servant and reflects poorly on the department in which he performs public business.  Such conduct requires a substantial penalty, a suspension without pay from County employment for a period of six (6) months.  The language of Code Section 2.04.104 D supports this Commission recommendation to the head of the department in which Mr. Stuart serves:

…[A] recommendation of suspension from office or employment … as well as a recommendation for length of suspension, shall be the appropriate sanction when the Commission finds a serious or repeated violation of this Division or of Division 2.03.100 of this Chapter has been committed intentionally or through knowing disregard of this Division or  Division 2.03.100 of this Chapter by  a … County employee. … The final authority to carry out such recommendations with respect to County employees shall be with the head of the department in which he or she is employed.  Appeals from the decision of the appointing authority of the governmental body, or, for County employees, of the department head following the sanction referred to in this subsection shall be as described in this Division, including any grievance procedure contained in any applicable collective bargaining agreement.

 

            Regrettably, the Commission cannot fail to note that the investigation also revealed that Mr. Stuart was able to flagrantly conduct his improper fantasy sports business in the workplace over a number of years because his superiors had to have repeatedly ignored what was obvious and disturbing to his coworkers.  Mr. Stuart collected and distributed money at his desk, he openly left his monitor tuned to the fantasy site for hours on end, he conducted extended discussions of the fantasy leagues on County time, his gaming materials were found in a County printer, and he ignored written directives to cease and desist. If he had been appropriately supervised, forceful action would have curtailed his conduct and administrative discipline imposed if he failed to conform his behavior to County policy.  Unfortunately, because of the absence of any appropriate exercise of supervision, this matter came to the Ethics Commission as a means of last resort.                              

Conclusion

The Commission finds by clear and convincing evidence that Mr. Stuart’s conduct violated Ethics Code Sections 2.03.104A and D:  he undermined public confidence in County government because his ability to carry out his official duties with integrity, impartiality, and competence is impaired and he used his public office to secure private gain.  The Commission recommends a sanction of six months suspension without pay.

 BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION THIS 12th DAY OF MARCH, 2014.

 

                                                            ______________________________

                                                            Johanna P. Bishop, Chairperson

                                                            New Castle County Ethics Commission

 Unanimous Decision by: Johanna Bishop, Beatrice Patton Dixon, James Keeley, Paula Jenkins Massie, Christopher Simon