On September 29, 2004, the New Castle County Ethics Commission opened an investigation into a complaint that alleged that Chief Administrative Officer Sherry Freebery violated the conflict of interest or appearance of impropriety provisions of the New Castle County Ethics Code in 2002 by directing County employees to perform political duties not associated with the business of New Castle County government and by causing them to be compensated with taxpayer funds.
New Castle County Code Section 2.04.103(C), regarding Commission investigations, provides, in pertinent part, that "[a] findings report shall not be issued later than three hundred sixty days after initiation of an investigation."1 Throughout the investigatory period, the question of the criminality of Ms. Freebery's conduct was the subject of a pending prosecution before the federal court, U. S. v. Thomas P. Gordon, et al. The Commission's ability to investigate factual issues regarding Ms. Freebery's conduct was severely limited by the existence of that prosecution. Witnesses and parties, on advice of their legal advisors, were reluctant to speak voluntarily with the Commission about matters upon which they were to be called to testify in the criminal trial. The Commission determined, after review of pertinent legal authority, that forbearance from subpoena enforcement against such sources was an advisable protection of the subject's constitutional right to a fair trial in the criminal case.
The Commission's investigation was also restricted by the time limitations imposed in the Code. Like a number of witnesses, Ms. Freebery was not available for interview during the investigatory period. After the Commission issued its findings at the end of the mandated 360 day period, because of the pending criminal and civil lawsuits related to the substance of the complaint, Ms. Freebery was granted lengthy continuances to contest the Commission findings in a hearing. She voluntarily submitted to an interview during the period of continuances and ultimately withdrew her request for a hearing on the Commission's findings.
The available evidence was undisputed: Ms. Freebery directed and caused unclassified County employees to be compensated from County funds for work on the political campaigns of two candidates in 2002. She admitted that she so directed them but alleged that she was ordered by her superior to use the employees in that manner. She produced evidence that before complying with her superior's directive she sought legal advice from the Acting County Attorney and procured a written finding that such use complied with the law.2
Ethics Code Provisions
The evidence available to the Commission did not support a finding that Ms. Freebery used her status as an appointed official or used County resources for the personal financial benefit of herself, her family, or a business with which she was associated. Therefore, she did not violate the conflict of interest provisions of sec. 2.03. 103A1 which state in pertinent part:
No County employee or County official knowingly or willfully shall use the authority of his or her office or employment or any confidential information received through his or her holding County office or employment for the personal or private benefit of himself or herself, a member of his or her immediate family or a business with which he or she is associated . . .
However, even in the absence of a conflict of interest, an Ethics Code violation can occur. The Code's appearance of impropriety rule at Sec. 2.03.104A prohibits creating an appearance in the mind of the reasonable member of the public that government decisions and actions are not based upon impartial considerations of the public interest. That rule states in pertinent part:
No County employee or County official shall engage in conduct which, while not constituting a violation of Section 2.03.l03 (A)(l) [Conflict of Interest], 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 decisions or actions of the County employee, County official or governmental body are influenced by factors other than the merits.
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 Sec. 4.3 (2000)
A reasonable member of the public would believe the decision to use unclassified employees to support candidates Ms. Freebery and/or her superior favored was made to advance personal preferences and was not a fair and objective decision made in the interest of the public. Using County taxpayer's resources to advance partisan political goals undermines public confidence in the impartiality of government actions. Therefore, even in the absence of a specific County rule prohibiting the use of unclassified employees for partisan political purposes,3 Ms. Freebery's conduct created an appearance of impropriety.
The New Castle County Ethics Commission finds that Ms. Freebery violated the New Castle County Ethics Code when, in her official capacity, she directed unclassified County employees to perform, and to be compensated by the taxpayers for so performing, political duties for two candidates for elective office. In light of the fact that Ms. Freebery is no longer in the service of New Castle County government, the penalty imposed for that violation is a letter of reprimand.
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION THIS 9th DAY OF SEPTEMBER, 2009.
Thomas P. Collins, Sr., Chairperson
1 Sec. 2.04.103C, in pertinent part:
"The Commission shall, within one hundred eighty (180) days of the initiation of an investigation, either terminate the investigation pursuant to subsection D of this Section or issue a findings report pursuant to subsection E of this section. The Commission may extend an investigation for up to two ninety (90) day periods, provided that each ninety (90) day extension shall be approved by a majority vote of members present. A findings report shall not be issued later than three hundred sixty (360) days after initiation of an investigation."
2 On September 25, 2002, the acting County attorney issued a memorandum to the Chief Administrative Officer stating that the County Code does "not preclude unclassified employees (e.g. Executive Assistants) from performing certain political activity during regular working hours."
3 The Commission notes that in late 2002, after Ms. Freebery's use of unclassified employees for political purposes was brought to the attention of County Council, that body amended the relevant Code provision prohibiting use of classified employees for political purposes to include unclassified employees. See New Castle County Code Section 26.01.019(B) which currently states, in pertinent part:
1. No employee in the classified or unclassified service shall, during regular working hours, take part in the management or affairs of any political party or in any political campaign or perform any service for any political party other than of an incidental nature to the official job description of the employee, except to exercise his or her right as a citizen privately to express his or her opinion and to cast his or her vote.
2. No employee in the classified or unclassified service shall at any time use or attempt to use his or her position with the County as a means of implementing or promoting the solicitation of any assessment, subscription, contribution or service for any political party.