State Public Integrity Commission

State Public Integrity Commission

CONFIDENTIAL MINUTES

February 18, 2014, MEETING

1. Call to Order:10 a.m. Present: William Tobin – Vice Chair (acting Chair); Andrew Gonser, Esq. – Vice Chair; Commissioners: Mark Dunkle, Esq.; Jeremy Anderson, Esq.; Commission Counsel: Deborah J. Moreau; and Administrative Assistant Jeannette Longshore.

1. Minutes: Approval of minutes from November 19, 2013, meeting. Moved--Commissioner Dunkle; seconded--Commissioner Anderson. Vote 4-0, approved.

1. Administrative Items

a. Opinion Synopsis-- Opinion Synopsis Update—Counsel has completed opinion synopsis’ for the past four years to bring the synopsis’ portion of the PIC website current. Counsel is currently working on re-organizing the synopsis section of the website to be posted by topic rather than by year. When that is complete, it will be sent to GIC to be posted on the website. Commissioner Dunkle asked Counsel to make sure that cases cited in the Commission’s opinions are available on the website.

b. Veasey Report—PIC was mentioned prominently in the recommendation section of the report. Former Chief Justice Veasey recommended that PIC be given additional resources and powers. To date, no one has reached out to PIC to discuss. The Commission discussed that fact that additional resources would allow for greater flexibility in accomplishing the mission of PIC. The possible need for an investigator was discussed but PIC does not need a full-time investigator at this juncture. It may be possible to hire an investigator on a per diem basis. The Commission tabled any further discussion to see if any changes to PIC are proposed as a result of the report.

The Commission discussed the ability to generate revenue through imposing registration fees on lobbyist employers. PIC will go forward with gathering support in the legislature for a statute which would accomplish that goal.

Commissioner Tobin mentioned that PIC had been discussed on a local news radio show in response to the Flowers controversy.

c. Candidate Filings—Only 1 candidate had not filed their financial disclosure as required by 29 Del. C. § 5812(n)(3) and § 5813. The election laws also require compliance pursuant to 15 Del. C. § 8003(f).

d. Budget—PIC’s JFC hearing is at 12:15 on 2/24/14. PIC’s proposed budget is $193.5 for FY 2015. We will address the personnel cost shortage during the “mark-up” period in April.

e. Legislation

(1) SB 151--HA 1—Add on to the legislation related to the Cash Management Board. The Amendment would have required members of the Board to file annual financial disclosures. Defeated on 1/30/14. May be reintroduced when the Sunset Committee reviews the Board later in the legislative session.

(2) SB 55—Adds members of the Public Service Commission to the list of Public Officers required to file annual financial disclosures. Signed 1/30/14. There are 4 members of the Commission. All 4 have filed.

f. Trainings

(1) DelDot on 2/7/14, 15 attendees (completed)

(2) Sussex County magistrates on 3/3/14

(3) OMB on 3/5/14

(4) DHSS on 4/7/14

(5) DelDOT on 5/2/14

4. Executive Session to hear confidential requests for advisory opinions and waiver requests. 29 Del. C. §5807(a) and (c).

5. 13-46 Outside Employment

This matter was previously discussed at the November 2013 meeting. [Employee] was unable to attend at that time. The Commission determined they would need [Employee] to appear at the next hearing so the issue could be more fully explored. (The January meeting was canceled due to weather). [Employee] attended this meeting accompanied by [a co-worker].

[Employee] is currently employed by the State and was appointed by the Governor. She serves [a specific segment of the population]. [Employee] makes decisions regarding [individuals]. [Employee]’s office handles approximately 225 cases per year of the 4000 cases in the [State].

[Employee] recently completed a training course that would allow her to act as [in another professional capacity]. She would like to use this ability to [participate in proceedings which are not assigned to her State office]. She proposes acting in her role as [a State employee] without actually having her office involved in the process. [Employee] believes the experience of [working on] those types of disputes would expose her to a different set of issues than those she typically deals with. She confirmed with [the agency overseeing the work] that there is a need for [additional personnel in this particular area]. Currently, there are only 5 [participants] on the list from which the parties choose. [Employee] would be unable to charge a fee if she was acting [in her official capacity]. However, she would recommend a donation be made to her office if asked by the parties. [The agency] already has procedures in place to accept donations. [Employee] is primarily interested in gaining new experience and using that experience to benefit her public office.

The Commission discussed the fact that the statute which authorizes the powers of the [the office] is broad in nature and also charges the [office] with educating the public. Therefore, the statute itself does not seem to prohibit [Employee] from working [in this capacity]. [Employee] does acknowledge that it would be a conflict of interest for her to [work in this capacity], receiving private compensation. In that case, the Commission was concerned that she would be leveraging her position to recruit private business. The Commission was also concerned about [Employee] having to divulge confidential information if she [worked on a matter] which was subsequently assigned to [her State office]. [Employee] stated she could avoid such a conflict by advising the parties of such a possibility.

[Employee] is also the Chair of [a] Commission. She has not asked her Commission for their position about her proposal. The PIC recommended that she obtain a position from each member of her Commission and forward that information to PIC within the next 30 days. Once PIC has reviewed the position of the members of [her] Commission, PIC will issue an opinion. Moved—Commissioner Dunkle; seconded–Commissioner Tobin.

As a final matter, [Employee] wanted the Commission to consider whether there would be a conflict of interest if she participated in [matters] not related to [issues handled by her office]. For those matters, she would be receiving payment as a private [employee].

Vote 4-0, approved.

1. 13-54 Personal or Private Interest – (unable to attend)

[Employee] was unable to attend the hearing due to a work conflict. The Commission considered her written submissions and her ethics disclosure in reaching a decision. 29 Del. C. § 5807(a). [Employee] works at [a State facility] as a licensed clinical psychologist. The [facility] [is in a Division] under the Department of Services for Children, Youth and their Families (DSCYF). [The facility] provides residential treatment services to [a specific population]. [The agency’s] staff reviews mental health and substance abuse treatment information for all [of the clients] admitted to the program to coordinate their behavioral health care while at the facility. Specifically, [Employee] assesses [clients] at intake and makes sure they receive the appropriate therapeutic services. She runs a couple of group therapy sessions and has a caseload of 2 or 3 clients for individual therapy. In addition to her counseling work, [Employee] is a resource for other counselors at the facility. She leads weekly team meetings, directs staffs’ development of each [client’s] individual treatment plan, and consults with staff regarding difficult clients. Once a [client] leaves the facility, she doesn’t usually have contact with them again but if they call and ask for her, she will speak with them.

[Employee] has been asked to serve as an unpaid board member of a community based non-profit organization that provides services such as employment counseling, affordable housing and neighborhood revitalization, youth programs, GED programs, and life skills training. [Employee] would not be providing therapy at [the organization] and wouldn’t be working with youth directly. DSCYF contracts with [the organization], but [the facility where she is employed] does not.

A. State employees may not review or dispose of matters in which they have a personal or private interest which may tend to impair judgment in performing official duties. 29 Del. C. § 5805(a)(1) and (2).

[Employee] will not be paid for her participation on the Board but the Commission has previously found that board membership is included in the definition of a private enterprise under the Code of Conduct. See Commission Op. No. 95-24. The Code also identifies “non-profit” entities within the definition of “private enterprise”. 29 Del. C. § 5804(9).

While [her facility] does not contract with [the organization], it is possible [Employee] could have contact with a [client] at [the facility] that she knows from her involvement on [the organization’s Board]. Should such a situation occur, the Commission decided she would need to recuse herself from any involvement with the [client]. Recusal has been broadly interpreted. Under the law barring her from reviewing and disposing of matters in which she has a personal or private interest that may tend to impair judgment in performing her State duties, Delaware Courts have ruled that when such interests exist, employees should recuse “from the outset” and not make even “neutral” or “unbiased” statements on the matter. Beebe Medical Center v. Certificate of Need Appeals Board, C.A. No. 94A-01-004 (Del. Super. June 30, 1995), aff'd., No. 304 (Del., January 29, 1996). Barring statements from the person who recuses is to insure they do not unduly influence their colleagues. Further, Courts have held that “mere presence” of the person with the conflict may influence their colleagues. As a practical matter, she would not be permitted to be involved with the [client] through personal counseling, group counseling, or supervising their treatment by a different counselor. Otherwise she may tend to rely on information she learned about the individual from her involvement with [the organization] to make decisions about the [client] in her State capacity. That is not to say she would do so. There is a strong legal presumption that she would not engage in such conduct. Beebe Medical Center v. Certificate of Need Appeals Board, C.A. No. 94A-01-004 (Del. Super. June 30, 1995), aff'd., No. 304 (Del. January 29, 1996).

B. No state employee may represent or otherwise assist any private enterprise with respect to any matter before the state agency with which the employee is associated by employment. 29 Del. C. 5805(b).

[The facility] does not contract with [the organization]. However, [Employee]’s supervising agency, DSCYF, does. [Employee] will be instructed to recuse herself from Board discussions related to her agency. However, the prohibition is only applicable to her agency. [Employee] is permitted to assist [the Board] with contract issues and grant requests involving other State agencies.

C. Officials may not engage in conduct that may raise suspicion among the public that they are engaging in acts which are in violation of the public trust and which will not reflect unfavorably upon the government. 29 Del. C. § 5806(a).

The Commission decided that if [Employee] recuses as necessary and does not represent [the organization] before her own agency, there would not be an appearance of impropriety. Additionally, she should not use State time and resources to accomplish duties associated with her Board membership. Moved—Commissioner Dunkle; seconded—Commissioner Gonser.

Vote 4-0, approved.

1. 14-02 Post Employment

Prior to the beginning of the hearing, Commissioner Dunkle disclosed that he knew [Employee] 20 years ago but has not stayed in touch with him since then. When asked if he could be fair and impartial, Commissioner Dunkle indicated that he could. No motion for recusal.

[Employee] [works for a Division] within the Delaware Department of Health and Social Services (DHSS). His current duties include managing grants received by the [Division]. That includes oversight of the completion of the grant applications, oversight of the hiring of the contractors under the grants, managing the budgets, reporting, and financial reports for the grants. He is also responsible for ensuring that all purchases made under the grants are allowable, verifying processes are in place to expend the funds received, and all project reviews conducted by the granting agencies. He is currently the chairperson for [one of the Department’s committees], and sits on [another committee]. He coordinates the development of plans by each Division, and directs the development of planning for [his Division].

[Employee] intends to retire from his State position in Oct. 2014. He is submitting a proposal for a contract [position] under an RFP issued by the Department of Children, Youth and Families (DCYF). The [successful candidate] will be responsible for all aspects of statewide grant project implementation and management. His responsibilities would include: coordinating, supervising, and managing, the work of the grant project team to ensure compliance with negotiated agreements; monitoring the grant to ensure compliance with federal requirements; serve as a representative to the grant governing body and provide information/reports requested; overall responsibility for the training and oversight of mental health services to children and their families which are funded through the grant. [Employee] would also prepare an annual grant continuation application to [a federal agency] to be approved by DSCYF, and foster collaborative relationships between agencies and organizations to support the mental health treatment of children in Delaware.

For 2 years after leaving State employment, State employees may not represent or otherwise assist a private enterprise on matters involving the State, if they are matters where the former employee: (1) gave an opinion; (2) conducted an investigation, or (3) were otherwise directly and materially responsible for the matter while employed by the State. 29 Del. C. §5805(d).

One reason for post-employment restrictions is to allay concerns by the public that ex-government employees may exercise undue influence on their previous co-workers and colleagues. United States v. Medico, 784 F.2d 840, 843 (7th Cir., 1986). Nevertheless, Delaware Courts have held that although there may be a subject matter overlap in the State work and the post-employment work, that where a former State official was not involved in a particular matter while with the State, then he was not “directly and materially responsible” for that matter. Beebe Medical Center v. Certificate of Need Appeals Board, C.A. No. 94A-01-004, J. Terry (Del. Super. June 30, 1995), aff'd., No. 304 (Del. January 29, 1996). In Beebe, while with the State, an official’s responsibilities were to review and make decisions on applications from hospitals to expand their services. It was alleged that he was violating the post-employment law because after he left the State he was representing a hospital on its application. However, the Court found that as to the particular application before his former agency for Nanticoke Hospital, he had not been involved in that matter while with the State, so he was not “directly and materially responsible” for that particular matter.

The Federal Courts have stated that “matter” must be defined broadly enough to prevent conflicts of interest, without defining it so broadly that the government loses the services of those who contemplate private careers after their public service. Medico at 843. To decide if [Employee] would be working on the same “matter,” Courts have held that it is the same “matter” if it involves the same basic facts, the same parties, related issues and the same confidential information. Ethical Standards in the Public Sector: A Guide for Government Lawyers, Clients, and Public Officials, American Bar Association, Section of State and Local Government Law, Publisher; p. 38. Similarly, this Commission has held that the facts must overlap substantially. Commission Op. No. 96-75 (citing Medico at 842). See also Beebe.

Like the matter in Beebe, [Employee] has worked on the subject matter, administering grants, while working for the State. However, the court in Beebe drew a specific line between the subject matter and its application to specific facts. [Employee] would be administering a grant program for mental health services, much like he did in his State position. However, there are important distinctions between the two positions. The grants administered in the post-employment position are related to treatment for juveniles while the grants he administers in his current position are related to adult treatment. Additionally, in the post-employment position, he would not be required to work with his current division. The Commission discussed the fact that some of the grants in the post-employment position are passed to DSCYF through [his Division]. However, those grants are historically subcontracted to outside agencies. The Commission compared the situation to one in which DelDOT employees are given permission to work with vendors after their State employment ends as long as they do not work on the same projects.

The Commission found that there would not be a violation of the post-employment restriction if [Employee] accepted the contract position with DSCYF. Motion—Commissioner Anderson; seconded—Commissioner Dunkle.

Vote 4-0, approved.