Filing Number: 13-07
Subject: Complaint
Keywords: appearance of impropriety, employee, procedural error
Decision By: Johanna Bishop, Paula Jenkins-Massie, Sally Jensen, James Keeley III, Eric Munoz. Abstention: Beatrice Patton Dixon.
Contact Email: admin@nccethics.org
 
Status: Active

Order:

COMPLAINT
 
            The complaint alleged that a supervisory employee created an appearance that factors other than the merits influenced the conduct of his Department when he did not take appropriate steps within his authority to prevent the distribution of incorrect bills to a significant number of County taxpayers. The specific Ethics Code regulation involved is the improper appearance regulation found in New Castle County Code Section 2.03.104 A.1 The Commission undertook an investigation of this complaint.

INVESTIGATION

               The investigation revealed that the supervisor was informed in December 2012 that there was a potential systemic error in data being used as the basis for certain County bills.  The supervisor obtained specific information about the potential error and distributed it to subordinates and co-workers but did not follow up with them to determine the extent and scope of the error. Despite having knowledge of the potential for significant impact, the supervisor did not perform a financial analysis to determine the extent of the problem before authorizing the issuance of incorrect bills the following month, bills which impacted approximately 29,000 County households.  The significance of the billing error was immediately obvious to other department employees who investigated the matter after the bills had issued.
 
              The investigation revealed that the supervisor never discussed the extent of the billing errors with the head of the department prior to May 15, 2013.  Even after the incorrect bills had been mailed and discovered to be in error by a number of other department members, the supervisor was continuing to allege that there was no substantial problem with the billing.  It was ultimately determined that approximately 60% of the bills in question had been issued in incorrect amounts.
 
             The investigation also showed that when the supervisor was approached by County employees who had learned of the billing errors before the problem became known to the public, the supervisor checked their accounts and credited them with refunds where required based on the supervisor’s stated policy of acting only when the supervisor received a specific complaint. 
 

Probable Cause Report

       

            On June 23, 2014, 265 days after the investigation began, the Commission voted to find probable cause and directed that a report was to be issued pursuant to its deliberations.  Two hundred eighty-three days after the initiation of the investigation, the Commission notified the supervisor in a written probable cause report that it found more probable than not that the supervisor violated Section 2.03.104A of the New Castle County Code of Ethics.  The Commission provided the supervisor with an opportunity for a hearing.  The supervisor responded to the report disputing its conclusion of Ethics Code violation, contending that the supervisor’s failure to take appropriate action was “human error”.  The supervisor did not request a hearing but raised a procedural bar to further proceedings because the probable cause report was not issued within 270 days of the initiation of the investigation.

New Castle County Ethics Code Provisions

            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.
 
            The Commission has previously stated that Section 2.03.104(A) prohibits the creation of an impression in the reasonable member of the public that an official or employee’s “official action is affected by personal interests which impair his or her competence, integrity and honesty. “An improper appearance is created when a reasonable member of the public “with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, [would hold] a perception that the [employee’s] ability to carry out [official duties] with integrity, impartiality and competence is impaired.” Advisory Opinion 13-07.
 
           New Castle County Code Section 2.04.103D requires that “A Probable Cause report shall not be issued later than two hundred seventy (270) days after initiation of an investigation.”
 
 
FINDINGS
 
            The Commission finds that the word “shall” in Section 2.04.103D connotes mandatory action and, therefore, it concludes that a procedural error occurred since the Probable Cause report did not issue within 270 days after the initiation of the investigation.  Consequently, the Commission no longer has authority to conduct further proceedings to resolve this complaint.  The complaint is DISMISSED.

 BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION THIS 10TH DAY OF SEPTEMBER, 2014.  AMENDED THIS 30th DAY OF OCTOBER, 2014.

 
_______________________________
Johanna P. Bishop, Chairperson
New Castle County Ethics Commission

Decision by:  Johanna Bishop, Beatrice Patton Dixon, Paula Jenkins-Massie, Sally Jensen, James Keeley III, Christopher Simon

Reconsideration granted and text amendments made on October 30, 2014: Johanna Bishop, Paula Jenkins-Massie, Sally Jensen, James Keeley III, Eric Munoz.  Abstention:  Beatrice Patton Dixon.

Footnotes:

1New Castle County Code Sec. 2.03.104. Code of conduct.
A. No County employee or County official shall engage 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 employee or County official is or has been associated by creating an appearance that the decision or action of the County employee, County official or governmental body are influenced by factors other than the merits.