State Public Integrity Commission Minutes
December 21, 2010
1. Call to Order: 10:00 a.m. Present: Chair Barbara Green; Vice Chair William Dailey; Commissioners: Mark Dunkle, Patrick Vanderslice; Commission Counsel Janet A. Wright, and Administrative Assistant Jeannette Longshore.
2. Minutes: Commissioner Dailey moved to accept; Commissioner Dunkle 2nd; approved.
3. Administrative Items:
(a)Training: The following classes are presently scheduled in 2011
DEDO – Wilmington – Jan. 5
DEDO –Dover – Jan. 6
DHSS – Dover – Jan. 21st
Employees/Officials from any agency can attend the following:
Wilmington – March 9 (2 classes)
Dover – March 22 (2 classes)
(b)Lobbyists Quarterly Reports:Due 10/20/10.Cancellation of Registration:Failure to file report is a voluntary cancellation and the lobbyist may not engage in lobbying until all reports are filed.29 Del. C. § 5837(c). Notified 8 lobbyists & their employers; list posted on PIC website and in Leg Hall.
(c)Disclosure Reports:New on-line form for State Elected Officials and Candidates for State Office to file Organizational Board/Council Membership Disclosure is operational. Those reports and the Financial Disclosure Reports are due March 15.
4. Executive Session:Commissioner Dailey moved; Commissioner Vanderslice 2nd; approved.
5. 10-37 – Jurisdiction
A citizen filed a complaint with a local Ethics Commission. It was dismissed for lack of jurisdiction. He alleged a Town Council member a violated a provision of the Town Charter. Counsel had drafted a response that PIC has no jurisdiction over the officials in that Town as they have their own approved Code of Conduct.29 Del. C. § 5802(4). However, to give him a better understanding of the law, the draft explained that subject matter jurisdiction only applies to the Code of Conduct provisions, and provisions of local Charters are not part of that law. Commissioner Dailey moved that Counsel’s draft response be sent; Commissioner Dunkle 2nd; approved.
6. 10-36 Personal or Private Interest Complaint
A citizen’s complaint alleged a personal and private relationship between a State employee and a Supervisor. It alleges the supervisor is reviewing or disposing of matters pertaining to the employee, e.g., time off with pay, when they have a personal relationship contrary to 29 Del. C. § 5805(a)(1). Compliant also alleged matters over which PIC has no jurisdiction, even assuming all facts as true, as required by 29 Del. C. § 5808(A)(a)(5):They are: (a) whether the State employee is qualified for the job held; (b) if the hiring process was proper; and (c) if the State employee can engage in political activities, during State work hours. Counsel recommended those 3 allegations be dismissed; that complainant be so notified; and be asked to contact Counsel for more specific information on the Code of Conduct issue. Counsel suggested complainant be told that the political activity law is in 29 Del. C. § 5954, not the Code of Conduct, and the other matters may be personnel issues. Counsel explained that once she has more information from the complainant on the alleged personal or private interest, it will be provided to the Commission to decide, assuming all facts as true, whether there would be reason to believe that a violation occurred.29 Del. C. § 5808(A)(a)(4). If not, it may dismiss.Id. Commissioner Dailey moved that the Commission accept Counsel’s recommendation to notify complainant of the allegations being dismissed, and that complainant contact Counsel to give more specific facts on the Code issue. Commissioner Vanderslice 2nd; approved.
7. 10-31 Personal or Private Interest. Case Update. Respondent is seeking a new Attorney. Response to Commission’s preliminary hearing findings now due in February.
8. 10-34 – Personal or Private InterestA private citizen had a complaint against a local official, but said he would defer the complaint if the official sought an advisory opinion. The official did so. The concern was that he had participated in a decision when he had a personal or private interest that arose from his private involvement in a matter that involved the citizen and others. The official had a private complaint about the conduct of the citizens but went beyond merely filing a complaint with the appropriate local officials. Instead, he called a meeting of the officials; participate in the discussions; identified what he had concluded were violations of a local ordinance; and then after the Town took action based, at least in part, on his input, he then participated in another discussion about how the local laws might be changed to handle these types of situations. He said that there is a matter which will be coming before the Town dealing with this particular citizen and he plans to recuse. Commissioner Green moved that he should not have participated; that for the future, he should not participate in official matters if: (1) he, his spouse or tenants are the complainants; (2) it is a matter related to the property abutting his property; and/or (3) they are directly derivative from his personal actions related to this particular matter. Commissioner Vanderslice 2nd; approved.
9.10-40 Outside Employment.A State employee investigates certain claims of fraud in her Division, and also holds a license as a medical professional. A second State agency wants to contract with her part-time to use her medical skills. Before her present State job, she had contracted with that agency for such work.Full Disclosure: State employees with a financial interest in a private enterprise that does business with any State agency must file a full disclosure.29 Del. C. § 5806(d). Her private contract constitutes a private enterprise.29 Del. C. § 5804(f). She filed a disclosure.Contracts with State: If for more than $2,000 must be publicly noticed and bid.29 Del. C. § 5805(c). While the agency’s contract could go as high as $10,000, the particular projects she would work on would be for less than $2,000. Contracts for less than $2,000 must show “arm’s length negotiations.”Id. That means distance between the parties, and fair market value. She cannot accept if accepting may result in: (1) impaired judgment: she cannot review or dispose of matters where she has a personal or private interest.29 Del. C. § 5805(a)(1).She has no occasion to review the 2nd agency’s matters in her State job. (2) preferential treatment: As she has no State involvement with the 2nd agency, she could not give it preferential treatment. No facts suggest that agency gave her preferential treatment in offering her the job, e.g., to obtain some type of benefit or because she is a State employee. Rather, contracted for this type of work with the 2nd agency before being hired by her present agency; (3) official decisions outside official channels: as no overlap exists between her private and State activities, no facts suggest this could occur; and (4) any adverse effect on the public’s confidence. No facts suggest an appearance of impropriety, but Counsel recommended, consistent with the Commission’s prior rulings, that she be reminded that she cannot use State time or resources to perform her private work. Counsel also recommended that PIC advise her, consistent with the law, that if the 2nd agency offers to expand her work on the particular projects she will be assigned under this contract, and it would exceed $2,000, she cannot proceed with that work as the contract was not publicly noticed and bid. Commissioner Dunkle moved the Commission go with Counsel’s recommendations; Commissioner Vanderslice 2nd; approved.
10. 10-35 Outside Employment
A State employee wanted to accept private employment as a sales representative for a private company. The company did not do business with his agency. However, he would be selling to professional organizations of which his bosses were members, and they could be involved in decisions about purchasing. This could result in State time being used to discuss private business. Also, as part of his official duties, he had responsibilities to contact those professional organizations about State matters. That also could lead to work time discussions about his private work. He said he could envision a scenario where he is at his State job and making calls to the organization about State business, and he could be speaking to someone to whom he was trying to make a sell. The sell would be on a product that would result in a very significant commission. He asked if he could not sell to the Delaware organizations that the Commission consider if it would be a conflict to work in Maryland. Commissioner Vanderslice moved that he could take the job in Maryland, but it would be too much of an overlap for him to concurrently work in Delaware because of the potential contracts with his own bosses; official decisions regarding organizations where he might be trying to make a sale; etc. Also, he cannot use State time for his private job; Commissioner Dunkle 2nd; approved.
11. 10-38 Gift. A State employee’s job is to give training to persons in the private sector. During the training she talks about different products on the market, that the trainees may be interested in using. She also said that if someone in the class could not afford those products, she does talk about other options. She is a friend of a member of a private group to which she gave training. Later, not immediately after the class, she was working with one of the attendees, showing how to use a product. She had gotten to know the woman because she had come for training, and demonstration of product use several times. They were talking on a personal level and she said if she could afford it she would get a specific product. Later, the private group gave her that particular product. The estimated value was $130 - $150. Commissioner Vanderslice moved that she should return either the seat or the value. Commissioner Dunkle 2nd; approved.
12.Out of Executive Session: Commissioner Dailey; Commissioner Vanderslice 2nd; approved.
13. Next Meeting: January 18, 2010.
14.Adjournment: Commissioner Dunkle moved; Commissioner Vanderslice 2nd; approved.