September 16, 2008

1. Call to Order: 10:00 a.m. Present: Vice Chair Bernadette Winston, Commissioners William Dailey, Wayne Stultz, Dennis Schrader and Barbara Remus; Counsel Janet A. Wright, and Administrative Assistant Jeannette Longshore.

2. Minutes: Commissioner Dailey moved approving the minutes with typographical changes. Commissioner Stultz seconded. Unanimously approved.

3. Administrative Items - Counsel update:

(a) Candidate Financial Disclosure Filings – 13 candidates have not filed. More than 3 notices were sent to some Candidates. In the past, PIC referred failures to file to the AG’s office for prosecution at his discretion. Counsel had suggested to Senator Amick that it may help if the PIC requirement were added to the Election law. Legislation was drafted but not considered. We tried curing the problem before by having Elections add a direct link to PIC’s form on its web site with Election forms they must complete. Candidates still say they did not know of the requirement. As Candidates may more likely read the Election law, legislation may help. Commissioner Schrader moved: send the usual letter to the AG. Commissioner Stultz seconded. Unanimously approved.

(b) Dewey Code of Conduct - The Town has a new Attorney. Counsel drafted a letter to him saying PIC reviewed their proposed Code 3 times. None were changed as suggested each time, e.g., add Post Employment provision. The new attorney had told Counsel the prior attorney had not given him that file. Commissioner Schrader moved approving the letter with these additions: Dewey is still subject to the State Code until its Code is approved, and attach the prior correspondence with the former Town attorney. Commissioner Stultz seconded. Unanimously approved.

(c) Election of PIC Officers – Commissioner Stultz moved that the present officers retain their seats until the next election. Commissioner Dailey seconded. Unanimously approved.

(d) Auditor Office – PIC had sent a letter to the Auditor on its concern that the Auditor was getting AG interpretations of the anti-double dipping law, rather than PIC--the only entity legally authorized to administer and interpret that law. He has previously asked for PIC’s opinion. This letter says PIC cannot intrude on the Auditor’s independence. It went on to say PIC could issue advice, but the Auditor’s office would not follow it. Counsel said PIC’s prior opinions to him had never intruded on the auditing process, and he had never raised that objection. He initiated those requests. Commissioner Schrader moved to send the letter. Commissioner Remus seconded. Unanimously approved.

4. Executive Session: Commissioner Schrader moved; Commissioner Stultz seconded. Unanimously approved.

5. 08-37 Outside Employment – a State employee, who is a licensed professional, asked if her outside practice would create a conflict as some of her clients may later qualify for some benefits administered by her agency. There is a very remote possibility the persons approved for the State benefits, might come to her private practice, as they select their own provider. Such State clients have not come to her in at least a seven-year period. In her outside job, she deals with adults and children. Her State job focuses on children who are State clients. Her outside clients are not clients of her Department, Division or Section. She also is not referred clients by the State Courts.Although it is very remote, if her private clients came to her State job, she would recuse. In her outside job, she would not accept agency clients. Commissioner Dailey moved there was no conflict at present, but that a waiver be granted if such clients come to her and for some reason she cannot recuse, but she must file a disclosure of her inability to delegate. Commissioner Schrader seconded. Unanimously approved.

6. 08-41 - Outside Employment – A State employee asked if he could accept a private job with a firm that several years ago did business with his agency. He would not represent or assist the firm on any State matters, but would work on matters outside the State of Delaware. The Commission approved a prior request from him on outside employment. In that case, as in this one, he said he would not deal with any State agency, even though the law only requires he not represent or assist a private enterprise before his own agency. He ended up not accepting that job, but wanted to know if the fact that this firm had previously done business with his agency would change PIC’s guidance.The Commission noted that he was self-imposing a greater restriction than required by law. The only difference here is this firm previously did business with DelDOT, but is no longer. Commissioner Schrader moved no conflict as long as he followed the prior advice. Commissioner Dailey seconded. Unanimously approved.

7. Out of Executive Session - 5 minutes: Vice Chair Winston moved; Commissioner Stultz seconded. After the break, Commissioner Schrader moved PIC back into Executive Session; Commissioner Dailey seconded; unanimously approved.

8. 0840 – Acts of Private Organization: A private citizen wrote that a landowners’ association will not adopt by-laws language that public officials could not be part of their organization. Counsel drafted a letter saying PIC has no jurisdiction to tell any private organization to bar public officials from theirorganization. She gave no facts saying the public officials were reviewing or disposing of matters related to the organizations; nor representing or otherwise assisting them before their own agency. The draft letter also said PIC is copying the Town, and if their officials want an advisory opinion they can seek one. Commissioner Schrader moved that the draft letter be sent. Vice Chair Winston seconded. Unanimously approved.

9. 08-42 – Outside Employment -A State employee asked if outside employment with a private firm, complied with the Code. The private firm has been State certified to provide certain services. She will not deal with her own agency. Her State section does not deal with the type of services offered by the private firm, or decide if the firm should be certified. She has no State clients as she deals primarily with grants. The private company has no grants from her agency. Commissioner Stultz moved no conflict. Commissioner Remus seconded. Unanimously approved.

10.Out of Executive Session - 5 minutes. Vice Chair Winston moved, Commissioner Stultz seconded. Unanimously approved. Same with return.

11. 08-43 – Outside Employment – A State employee asked if she could accept a private job as long as: she does not deal with her own agency; or her agency clients, in her private capacity; she would have no occasion to make decisions about the private firm in her official capacity; if so, she would recuse from her State job if her private clients came to her for State services. In her private capacity, if her State clients come to the firm, the matter could be given to another of the firm’s employees. Commissioner Remus moved no conflict if she does not deal with her State clients in her private capacity, and vice versa. Commissioner Stultz seconded; unanimously passed.

12. Out of executive session – 5 minutes. Vice Chair Winston moved. Commissioner Stultz seconded. Unanimously passed. Same on return.

13. 08-39 Conflict of Interest – Local Officials’ private memberships

Recusal -Commissioner Schrader recused and left.

At the last meeting, PIC disposed of some non-jurisdictional issues on this matter so it could focus on just potential conflicts this time for three officials. One is a social member of a Volunteer Fire Dept. Under State law, volunteer Fire Departments are considered State agencies. 16 Del. C., ch. 66. The official would normally review matters related to funding, which generally includes funding decisions on the fire dept. The official has never participated in any Fire Dept. decision. The last decision was made before he became an official. If the Fire Dept. comes before Council for any purpose, he can recuse. (NOTE: See guidance below if for some reason he cannot recuse).

Another Council member is a non-profit Board member. It also may seek funds. It uses a facility owned by the Town.

The third official is a member of an organization that the local legislative body authorized the Chief of Police to create. It was solely at the Chief’s discretion to create the organization and seek volunteers to participate. The group has its own duty office; it uses Town space; it seeks funding; and for other reasons comes before this third official. The official is also a very active volunteer in the organization. Commissioner Dailey moved that the three should not, in their official capacity, review or dispose of matters pertaining to the organizations, except on such things as the budget if they cannot delegate the responsibility. In that case, they must file a full disclosure with the Commission explaining why they cannot recuse or delegate. They also have the option to resign from the private organizations and avoid any possibility of a conflict. Commissioner Stultz seconded. Approved, with Commissioner Remus dissenting on the Historical Society and CAP issues.

14.Out of Executive Session. Commissioner Remus moved. Commissioner Dailey seconded. Unanimously approved.

15.Adjournment. Commissioner Dailey moved. Commissioner Remus seconded. Unanimously approved.