The complaint alleged that the subject, a County official, created an appearance of impropriety by condoning or permitting use of County resources for an insubordinate gathering during working hours.   The Commission noticed the subject and initiated an investigation.

FINDINGS OF FACT

            The investigation documented that a gathering, including refreshments brought to the office by some of the participants, took place in a County building during County hours on the date in question. The investigation showed that the participants did not request permission to hold the gathering or provide notice to the County officials managing or supervising them.  The alleged purpose of the gathering was to welcome back certain employees who had been placed on discipline-related administrative leave.

            The investigation showed that the department in question did not, and does not, have procedures established for employees to follow when personal celebrations in the work place are to be scheduled.  Supervisory staff is not necessarily informed about such gatherings in advance and apparently the personal use of County time and facilities proceeds at the whim of the employees.

            The investigation showed that the department in question had been short staffed because a significant portion of its employees had been placed on the discipline-related leave, necessitating an increased workload for those not on leave.   The employees who organized the party said they did so because the return of those on leave meant that the organizers increased workload was at an end.   The participants denied any motive to be insubordinate in celebrating the return of those who had been subject to the discipline-related leave.   The language reportedly used by the participants when welcoming the returning employees was found to be equivocal.

            The subject denied prior knowledge about the gathering, said he had not seen the food sign-up sheet for participants, and was not present in the building on the date in question until after the gathering had ended.  He stated that he did not learn of it until he was contacted while at a meeting in another building.  The investigation verified these statements. 

            The official indicated that on returning to his office he followed instructions from another department head to meet with the organizers of the gathering and discuss the inappropriateness of celebrating the return of those who had been placed on a discipline-related leave.  The investigation documented that the official met with the employees on the date in question.

NEW CASTLE COUNTY ETHICS CODE

            New Castle County Code Section 2.03.104 (A) prohibits conduct which undermines the public confidence in the impartiality of a governmental body with which a County official is associated by creating an appearance that the decision or action of the official or governmental body are influenced by factors other than the merits.

            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

            At this stage of the proceedings, the burden of proof regarding a determination of appearance of impropriety is “more probable than not”.  See, Code Section 2.04.103G.

The investigation did not produce evidence to support the allegation that the subject condoned or permitted an insubordinate personal gathering during work hours in a County facility and the “probable cause” standard has not been met.   The investigation did document administrative failings in regard to the absence of any procedures which would permit supervisors to control the use of County resources in regard to personal gatherings in County facilities during work hours.  However, that issue was not part of this complaint and appears to be a matter that should easily be remedied by administrative means.

CONCLUSION

             The complaint is DISMISSED.

BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION THIS 8^th DAY OF JANUARY 2014.

______________________________

Johanna P. Bishop, Chairperson

New Castle County Ethics Commission

   Unanimous Decision by Commissioners Johanna Bishop, James Keeley, Christopher Simon, and Gerald Turkel