Filing Number: 13-08
Subject: Complaint
Keywords: appearance of impropriety, County official, procedural error
Decision By: Johanna Bishop, Paula Jenkins-Massie, Sally Jensen, James Keeley III, Eric Monzo. Abstention: Beatrice Patton Dixon.
Contact Email: admin@nccethics.org
 
Status: Active

Order:

COMPLAINT
 
           The complaint alleged that an official violated the conduct regulations of New Castle County Ethics Code Sections 2.03.104A and D by unreasonably delaying public notification of errors in a County billing and that the official established procedures which created an appearance that County employees and the official’s personal friends and family were improperly benefitting in regard to correction of erroneous bills.1 The Commission undertook an investigation of this complaint.
 
INVESTIGATION
 
            The investigation revealed that the official was informed that the official’s department had issued incorrect County bills to a substantial number of County taxpayers shortly after those bills issued. The official’s investigation of this problem was conducted in an untimely, inattentive, and negligent fashion and the official did not take meaningful steps to correct the billing or inform County taxpayers of the situation. Rather, the official caused correction only of bills about which complaints had been made or those bills of family, friends or others that the official caused to be investigated. The official told the Commission that the erroneous billing was not discussed with the supervisor responsible for the billing process and that the official did not inform the official’s superiors about the issue until it was brought to their attention by a source outside the official’s department, almost four months after the incorrect bills had been sent.
The error came to the attention of the public when it was publicized by the outside source. The billing error created a potential distortion of about $500,000.00 in County revenues and impacted approximately 29,000 County households. The News Journal published an editorial describing the erroneous billing by County government as exemplifying a “measure of disorder and a dose of incompetence”.
 
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 official in a written probable cause report that it found more probable than not that the official violated Section 2.03.104A of the New Castle County Code of Ethics but that the official was not found to have violated Section 2.03.104D by using public office for unwarranted personal gain. The official responded to the report, disputed its finding of violation, and raised a bar to further proceedings because the written report was not issued within 270 days of the initiation of the investigation and, in the alternative, requested a hearing.
 
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 hold a hearing or 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.
. . .
D. No County employee or County official shall use such public office to secure unwarranted privileges, private advancement or gain.