Filing Number: 00-20
Subject: Conflict of Interest
Keywords: appearance of impropriety, conflict
Decision By: Unanimous by Commissioners
Contact Email: admin@nccethics.org
 
Status: Active

Order:

  COMPLAINT

The Commission received a Complaint (the “Complaint”) alleging that a County employee (the “County Employee”) attempted to secure favorable treatment for the County Employee’s close relative (the “Close Relative”) with respect to the Close Relative’s application for employment for a Merit System position in a County department (the “Department”).   

FORMAL INVESTIGATION

The Commission initiated a formal investigation in this matter, which investigation resulted in the provision of the following information to the Commission. At all times relevant to the facts alleged in the Complaint, the County Employee served as an appointed employee, and the Department employed the Close Relative as a seasonal employee.  The County Employee did not work in the Department.

While the Close Relative was employed in the seasonal position, the County Office of Human Resources (“Human Resources”) posted a job opening for a Merit System position (the “Merit Position”), which is also a Union position.  The first posting for the Merit Position stated, in relevant part, that “[p]ossession of a valid Delaware commercial driver’s license Class B (CDL-B) or its equivalent is also required.”  The posting did not specify when an applicant must hold the license, e.g., at the time of application or later in the hiring process.  In response to the posting, forty-two (42) people applied and tested for the Merit Position, including the Close Relative.  Some applicants, including the Close Relative, did not hold a CDL-B license at the time they applied for the Merit Position.  The County did not hire any of the applicants for the Merit Position who applied in response to this posting.  

Three months later, Human Resources reposted the Merit Position. This second posting differed from the first posting in that it stated that an applicant would be required to hold a CDL-B permit at the time of testing, and a CDL-B license “prior to the tentative offer of employment.” The Complaint alleged that the job posting was revised for the specific purpose of making it possible for the Close Relative to qualify for the job.   The investigation revealed a conflict in fact witness testimony as to the reason for the second posting.  One fact witness stated that the reposting resulted from a Union representative’s complaint relating to the lack of clarity in the first posting concerning licensing, and not any action on the part of the County Employee. The Union representative, however, stated that no such complaint was made. The County Employee denied any knowledge of, or involvement in, the posting process for the Merit Position.   The investigation did not find evidence that the County Employee was involved in the revised second posting for the Merit Position.

The investigation revealed that training on County motor equipment has been provided to any County employee who requests such training, although the Department has no written policy on such training.  As a result, the training has been performed on an irregular, nonuniform basis.  Neither of the two job postings at issue informed any prospective applicant that free training, prior to the testing, was available to any County employee applicant who made such a request.  Additionally, Human Resources was of the belief that training of County employees on County motor equipment, for the purposes of job advancement or securing other County employment, is provided when requested, but that training has generally ceased once a job is posted involving such equipment.  The investigation did not find the existence of that policy in writing.  The Close Relative received training on the motor equipment involved in the performance testing for the Merit Position after the position had been posted.  The County Employee denied any involvement in the Close Relative’s equipment training, and the investigation did not find that the County Employee took any affirmative action relating to such training to ensure the Close Relative received the training.  

Ultimately, the Close Relative was not hired for the Merit Position. Nonetheless, the investigation revealed that the process with respect to the Merit Position was unusual; that its process appeared to run counter to law, policy, and/or customary County practice; and that the manner in which the hiring process was handled for this position raised suspicion on the part of the Complainant, and County personnel and others interviewed during the investigation as to possible special treatment of the Close Relative. 

COMMISSION JURISDICTION AND PROCEDURES

The Commission has jurisdiction over this matter pursuant to Code Sections 2.04.102.K and 2.04.103.D. Further, Code Section 2.03.102 defines “County official” as “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). [sic] ‘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; and “County employee” as “any person who receives compensation as an employee of a County Department or County row office.”  

New Castle County Code Section 2.03.103.A. states: “A. Restrictions on exercise of official authority. 1. No County employee or official knowingly or willfully shall use the authority of his or her office or employment or any confidential information received through his or her holding County office or employment for the personal or private benefit of himself or herself, a member of his or her immediate family or a business with which he or she is associated. This prohibition does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the County official or employee, a member of his or her immediate family or a business with which he or she or a member of his or her immediate family is associated. There will be a rebuttable presumption of a knowing or willful violation of this section if the action benefits the County official or employee, his or her spouse, or his or her dependent children (whether by blood or by law).”

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 [financial 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 decisions or actions of the County employee, County official or governmental body are influenced by factors other than the merits.”

The burden of proof regarding a determination of whether a violation of the Ethics Code occurred is the “clear and convincing” standard. New Castle County Code Section 2.04.101H requires that the “At least four (4) members present at a hearing must find a violation by clear and convincing proof.”

FINDINGS

The undisputed facts disclosed by the investigation in this matter did not support a finding of clear and convincing proof that the County Employee violated either Section 2.03.103.A. or Section 2.03.104.A.  The Commission, however, finds the results of the investigation, including testimony of many County employees, quite disturbing, and it takes notice of: (1) the unusual second posting for the Merit Position and the conflicting testimony as to the basis for it; (2) the lack of procedures in place for job training on County equipment for the purposes of securing County employment; and (3) the lack of caution on the part of the County Employee to take affirmative steps to make clear to other County employees that the Close Relative should receive no special treatment due to the familial relationship with the County Employee.

The Commission finds that the second and revised posting for the Merit Position, which could be interpreted by a reasonable person to favor the Close Relative, as well as the failure to adopt procedures for job training, together, created an appearance of impropriety and unfairness in the hiring process, as evidenced by the filing of the Complaint in this matter.  The Merit Position was viewed as an opportunity for advancement by other County employees, and the failure of the County to have instituted uniform, consistent training procedures led to the actual or potential impression among County employees that the Close Relative was receiving special treatment due to the familial relation with the County Employee, all of which reflects badly upon the County as a whole and the County’s hiring policies and practices. It should be noted that the County Employee also expressed concern during the investigation at the lack of procedures in place for training on County equipment for the purposes of securing employment.

The Ethics Commission, therefore, strongly recommends that either the County, and/or each department to which this recommendation is relevant, immediately implement a uniform policy concerning training on County equipment in relation to the hiring process, or cease training on County equipment altogether in such circumstances.  If such training continues to occur, job applicants should receive timely written notice, on a uniform basis, of the training policy at the time they apply to a position where the County will be testing applicants on County equipment

The Commission also determines that the best course of action for the County  Employee, and any person in a similar  position in the future, would have been to make it clear in a series of well-documented communications to all persons  involved in the posting of County job openings and/or the hiring process oversight, in any and all departments impacted, that the County Employee was recusing from anything connected with the  Merit Position and the Close Relative, and that nothing favoring the Close Relative should take place in the hiring process.  In this Order, the Commission is putting every similarly-situated County official or employee, regardless of position, on notice that such documentation of recusal is the best practice to avoid any perception of unfairness in, or manipulation of, the hiring process. If there are any questions about this process, the Commission, through its Ethics Counsel, should be contacted for a confidential and thorough discussion of the matter. 

The Commission wants to be clear that it has much respect for the many highly-experienced, dedicated people who work for County government. It is obvious to the Commission that the good work of County employees benefits the residents of New Castle County on a daily basis, and oftentimes in ways that are virtually invisible to the public, and for which these employees rarely receive public appreciation.  It is that fact which has caused the Commission to find some of the issues involved in this Complaint particularly disturbing. The investigation in this matter, which included the interviews of County personnel from a number of departments, revealed that many County employees, despite their high standards and desire to follow the rules, reported often feeling defeated by a “County employee culture,” which, in certain situations, such as the one presented in this Complaint, placed them in an untenable situation.  These employees reported that they felt, at times, that it was expected of them to perform actions which were necessary to obtain a result desired by their supervisory personnel even when such action may not comport with the rules or the law, and, importantly, even in the absence of any verbalized, express direction to the employee by supervisory personnel to produce that result. The employees reported that this “County culture” simply expected the bad actions of them, and that there would likely be no negative consequences for these actions.

The Commission believes that such a culture is unacceptable and strains the edges, if not the body, of the Ethics Code. It should go without saying that a County employee should never be placed in a position where he or she is silently (or expressly) expected by a supervisor to perform an action that may be in abrogation of the rules or the law. The County employee culture should reflect the good values of the County government, not the unwanted reality that certain County employees get what they want regardless of the rules or the law. The Commission cannot abide that result. As such, the Commission hereby takes this opportunity to provide notice to all County officials and employees, regardless of their job classification or appointment, that it is imperative that they contact the Commission, through Ethics Counsel, to discuss, on a confidential basis, any workplace or other situation which the County official or County employee believes may be in violation of the Ethics Code, regardless of whether the official or the employee contacting the Commission is the person who is attempting to avoid violation of the Ethics Code or whether it is the official or employee who believes someone else may be about the violate the Ethics Code, unintentionally or purposefully.

The Commission recognizes that the Ethics Code provides guidance in and of itself, but cannot list every possible situation in which a County official or employee may find him or herself. Early communication with the Ethics Commission is key. This contact with the Ethics Commission for guidance on an issue which implicates the Ethics Code should take place, whenever possible, before the issue arises, so that the County official or County employee may be able to rely on the guidance provided by the Ethics Commission. Nevertheless, even where the potential Ethics Code violation has been or ay have been undertaken, the Ethics Commission very strongly urges the County official or employee, regardless of rank, position, or duties, to contact the Ethics Commission as soon as possible for guidance in any event.   

CONCLUSION

The Commission does not find that the County Official violated either Section 2.03.103.A. or Section 2.03.104.A. of the Code.  Nonetheless, the lack of lack of procedures concerning training on County equipment, as well as the lack of explicit written recusal by the County Official, leads the Commission to advise implementation of the policies and customs, by all County departments, which it has set forth in this Order.  

 

BY AND FOR THE NEW CASTLE COUNTY

ETHICS COMMISSION

THIS 29th DAY OF MARCH 2018. 

 

Eric J. Monzo, Esquire, Chairperson

New Castle County Ethics Commission