Filing Number: 16-08
Subject: Appearance of Impropriety
Keywords: appearance of impropriety, bias, city council, Commission jurisdiction, communication, complaint, conflict, elected official, impropriety, personal animosity, recusal, undue hardship
Decision By: Eric Monzo, Beatrice Patton Dixon, Paula Jenkins-Massie, Sally Jensen, Robert Ralston
Contact Email: admin@nccethics.org
 
Status: Active

Order:

COMPLAINT
 
The complaint alleged that the subject, a New Castle City councilman, violated the New Castle County Ethics Code when he spoke with the complainant about a constituent community issue in a rude manner which included inappropriate and racist language.  The Commission reviewed the documents presented by the complainant and concluded that the matter is outside the jurisdiction conferred upon the Commission by the New Castle County Code. 
 
FACTUAL FINDINGS
 
            No findings of fact were determined in this matter for the reasons set forth below.  The allegations, however, include a fact pattern that occurred on May 23, 2016, where a New Castle City councilman, who is white, responded to questions from a constituent, who is African-American, by referring to “you people who did not vote for [him].”  Further, when the complainant asked the councilman what he meant when he used the term ‘you people,’ he responded by saying “Black people; You have on your ‘black lives matter’ shirt,” although the complainant’s shirt did not say that.  The councilman also allegedly told the complainant, “You people think you are the only ones with rights.  White people have rights and white lives matter.”  And, the councilman allegedly felt it appropriate to tell his constituent to get the “f*** off of his property.” The exchange ended with an insult from the councilman regarding whether the complainant had a college education.  The complainant was very disturbed and upset as a result of the exchange and reported never expecting such treatment from an elected official.
            
NEW CASTLE COUNTY ETHICS CODE
 
New Castle County Code Section 2.03.104.A states:
 
No County employee or County official shall engage in conduct which, while not constituting a violation of Subsection 2.03.103.A.1, 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 decisions or actions of the County employee, County official or governmental body are influenced by factors other than the merits.
 
Further, Section 2.03.102 includes the following pertinent definitions (emphasis added): 
 
County means New Castle County and including any County Department.
County employee means any person who receives compensation as an employee of a County Department or County row office.
 
County official means any person elected or appointed to any County office, board, commission or the New Castle County Council Audit Committee provided, however, that for purposes of Sections 2.03.103(B)(2), 2.03.103(C), and 2.03.104(C), "County official" does not include any member of a board or commission which operates solely in an advisory capacity, and whose members are not compensated, other than reimbursement for expenses.
 
            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.
 
BURDEN OF PROOF
 
            For the reasons stated below, the burden of proof here is not relevant.
 
COMMISSION FINDINGS
 
            The subject of this complaint is a New Castle City councilman; an elected official for the City of New Castle.  He is not a County official or County employee whose conduct would be governed by the New Castle County Ethics Code.  As such, this Commission has no jurisdiction over the subject of this complaint nor his conduct as a New Castle City councilman. Having no jurisdiction over this matter, the Commission has no alternative other than to dismiss the complaint without investigation.  If, however, it was proven that this behavior, as alleged in this complaint and described above, had been exhibited by an official or employee of New Castle County, and, therefore, covered by the County Ethics Code and within the jurisdiction of this Commission, this Commission would have regarded such behavior as a flagrant violation of the Ethics Code for which a recommendation of removal from office would be appropriate.   
 
CONCLUSION
 
             The complaint is DISMISSED.
 
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION
THIS 13th DAY OF JULY 2016.
 
                                                  ___________________________
                                                 Johanna P. Bishop, Chairperson
                                                 New Castle County Ethics Commission
 
 
[Unanimous]