The subject of the complaint is an elected official with responsibility for voting on land use legislation. The subject's wife is a prominent land use attorney who primarily represents real estate developers and practices in a law firm in New Castle County. The complaint alleged that an email sent by the subject on June 11, 2008, to a group of 24 persons in or representing the real estate developer community, which contained the electronic signature of his wife's law firm, created the appearance that the subject's official decisions or actions, or those of body to which he was elected, were influenced by factors other than the merits of the matter before them.

 

INVESTIGATION

 

            The investigation uncovered evidence that the subject compiled at least four pieces of draft land use legislation on his home computer and that on June 9, 2008, he emailed them to his wife at her law firm and requested that the drafts be reformatted to pdf versions. The documents were reformatted as requested and on June 10, 2008, were emailed by his wife to the subject's home computer.

 

            The subject "cut and pasted" a message on the email sent to his home computer and addressed it to 24 persons active in the real estate development community. That email message included the pdf attachments returned by his wife. On June 11, 2008, the subject sent the email along with its attachments to his County office computer. On June 11, 2008, the subject sent the email, including the email signature of his wife's law firm on the message page, to the 24 recipients.

 

            The subject's County office assistant's computer contained programming enabling her to create pdf files.

 

            The subject's June 11 email came to the notice of the public on June 12, 2008, and was the subject of criticism by some fellow office holders, members of the public, and the media. Some time after June 12 but before June 24, 2008, a fellow County official, who had co-equal responsibility for land use legislation, asked the subject for a copy of the four attachments to the June 11 email. On June 24, 2008, in response to that request, the subject deliberately sent the fellow official four documents, two of which were not copies of the attachments.

 

            On June 24, 2008, following a public meeting at which the subject's conduct in sending the email was criticized by members of the public and County officials, the subject urgently instructed and assisted two employees in permanently deleting approximately 5000 emails, including the development community email in question, from his County computer.

 

ETHICS CODE PROVISION

 

            It is a violation of the New Castle County Ethics Code to "engage in conduct which, while not constituting a violation of [the conflict of interest rules], 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 of actions of the County employee or County official or governmental body are influenced by factors other than the merits." See §2.03.104A.

 

            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.

 

            The New Castle County Ethics Commission has advised that in the absence of a pecuniary interest or creation of an appearance of impropriety on the part of an elected official, such a person may communicate for review and comment with an industry group impacted by proposed legislation without violating the New Castle County Code of Ethics. See Advisory Opinion 08-03, July 11, 2008.

 

STANDARD OF PROOF

 

            The burden of proof regarding a determination of whether a violation of the Ethics Code occurred is the "clear and convincing" standard recited in Code Section 2.04.103F. The clear and convincing standard has been defined by the Delaware Supreme Court as follows: "to establish proof by clear and convincing evidence means to prove something that is highly probable, reasonably certain, and free from serious doubt." Hudak v. Procek, 806 A.2d 140, 147 (Del. 2002). The Procek court also cited the Delaware Superior Court Pattern Civil Jury Instructions definition: "evidence that produces in the mind of the trier of fact an abiding conviction that the truth of a factual contention is highly probable." Id. at § 4.3 (2000)

 

COMMISSION VOTING REQUIREMENTS

 

            New Castle County Code Section 2.04.101G requires that the "votes of at least four (4) members present are required for any action or recommendation of the Commission other than minor procedural matters . . . ." New Castle County Ethics Commission Regulation 2.04.101G states that for "all matters, other than minor procedural matters, there must be at least four affirmative votes for the Commission to take any action or make any recommendation."

 

FINDINGS

 

            Four members of the Commission were not able to come to unanimous agreement. Therefore, pursuant to Code section 2.04.101G, no action can be taken and the complaint must be dismissed.

 

 

            The Complaint is DISMISSED without a finding.

 

 

___________________________________

Thomas P. Collins, Sr., Chairperson

 

Decision: For finding violation: Thomas P. Collins, V. Eugene McCoy, Gerald Turkel; Against finding violation: Edward Danberg, John McMahon