A County employee filed a complaint against a supervisor alleging that the supervisor obstructed justice in allegedly failing to investigate a report of misuse of federal funds as well as state criminal law violations and that the supervisor retaliated against the employee for making the reports and seeking investigations of these matters. The Commission notes that it is without authority to investigate the alleged circumstances of federal and state law violations. The authority for such investigations lies with the appropriate state or federal law enforcement agency.

 

            The Commission's jurisdiction is limited to an investigation of whether the supervisor violated the Ethics Code if the supervisor retaliated against the employee for reporting those alleged violations and seeking investigations.

 

 

            The Commission investigated, and now dismisses, the complaint that the supervisor retaliated against the employee. The Commission investigation showed no conflict of interest or impropriety in the supervisor's method of handling the employee's report of suspected misuse of federal funds and criminal complaints. The investigation also failed to substantiate the complaining employee's contention that he was retaliated against in the terms and conditions of his job since the claimed impairments resulted from a general restructuring of the department's managerial authority or were the result of his own inability to control his workplace behavior.

 

 

            The complaining employee was the subject of complaints about his work place behavior which had been discussed with him by his superior prior to an extended leave he took from his job. During the leave, he made a written allegation to his supervisor that a fellow employee violated federal rules resulting in improper financial gain for the County. After he returned to employment, he made a variety of criminal and other complaints to his supervisor regarding the use of his office equipment by other employees during his absence. He demanded that his allegations be taken to particular authorities. After looking into the allegations, the supervisor did not accept his conclusions about the improper performance of the fellow employee or his complaints about the use of his office equipment. Very shortly thereafter, the complaining employee forwarded his allegations to the police and other relevant authorities despite his supervisor's conclusions. Those authorities did not substantiate the complaining employee's allegations and in at least two instances, witnesses told those authorities that the complainant had misrepresented their statements.

 

            During and after the employee's leave of absence the supervisor implemented a restructuring of department-wide management responsibilities which had been the subject of prior planning. When the complaining employee returned to work he felt that the changes the supervisor made were meant to circumvent his authority and he displayed what was described as a suspicious and angry disposition which further alienated his coworkers. Some of those workers not only made further complaints about him to the supervisor but also to other County authorities indicating that they feared for their personal safety.

 

 

            The conflict of interest rule recited in New Castle County Code Section 2.03.103(A) restricts the use of official authority by a County official or employee. It states in pertinent part:

 

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).¹

 

            An appearance of impropriety can exist even where there is neither a conflict of interest nor actual wrongdoing on the part of an employee or official. Section 2.03.104A states:

 

No County employee or County official shall engage in conduct which, while not constituting a violation of Section 2.02.103(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 a appearance that the decision or action of the County employee, County official or governmental body are influenced by factors other than the merits.

 

            The standard for judging appearance of impropriety for judicial public officials has been described in 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. The Commission believes that standard is equally applicable to the conduct of County officials and employees.

 

            Employees who report official wrongdoing are protected by law. Section 2.03.304 of the New Castle County Employee Protection Act states in pertinent part:

 

            The County shall not discharge, threaten, reassign or otherwise adversely impact an employee regarding the employee's compensation, terms, conditions, location or privileges of employment because:

A. The Employee reports, in a written or oral communication to an elected official, or in a written communication to a non-elected public official, a suspected violation of a law, rule or regulation adopted by the County, the State or the United States, a violation of a court order, a misuse of public funds, or an action which is of substantial and specific danger to the public health, safety or welfare unless the employee knows that the report is without merit;

 

The purpose of this provision is "to remove barriers to the good faith reporting of violations of law and regulation and the misuse or waste of public funds. . . . The Act extends protection to the County employees who report violations to the County Auditor, the County Attorney, the Ethics Commission and department general managers (as well as to elected officials . . . )".

 

 

            The Ethics Commission is without jurisdiction to investigate complaints concerning the violation of state and federal law and accepts the conclusions of other authorities which have such jurisdiction.

 

            The investigation does not substantiate any claim of conflict of interest in the conduct of the supervisor. There is no evidence supporting the complainant's inference that the supervisor used authority as a County employee to affect a personal or private interest. The allegation that the supervisor was obstructing a proper investigation of his complaints in order to protect wrongdoers fails since the supervisor appears to have discussed all of the complaints with the complaining employee, appropriate superiors, and relevant law enforcement authorities. In fact, the federal funds complaint was fully investigated and the investigating agency reported that the complaining employee's allegation was not substantiated. It reported that some witnesses said the complaining employee cited them as authority for misleading and incorrect conclusions.

           

            Witnesses to the complaining employee's conduct after his return from leave indicate that he made many of his complaints in a public fashion and was insubordinate and difficult in the presence of the supervisor. The supervisor's behavior toward the employee was described as restrained. The fellow workers recalled that the complaining employee's outbursts in front of them were disruptive and threatening. The investigation supports a finding that a reasonable member of the public would not believe that the supervisor's conduct diminished confidence in the competency of the department or created an appearance of bias.

 

            The investigation also found no support for the claim that the supervisor retaliated against the complaining employee for making a good faith written report of suspected violation of a law, rule or regulation adopted by the County, the State or the United States or for a report of misuse of federal funds. The supervisor was entitled to effect changes in management style in order to enhance the efficiency of the department. Those changes, which reduced the complaining employee's authority over some subordinates, were in the planning stage when he was first reprimanded about his conduct in the workplace. The management changes were department-wide and did not appear to target the complaining employee. Instead, the investigation suggests that the negative conditions of which the employee complains appear to be the result of his own conduct.

 

            THE COMPLAINTS ARE DISMISSED. BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION ON OCTOBER 10, 2007.

 

_______________________

John McMahon, Chairperson

 

Vote: Unanimous