The complaint alleged that the subject used County compensated personnel and resources in an attempt to intimidate citizens whom the subject disliked. It also alleged that the subject used the services of a County compensated employee as well as a County computer to compile and maintain a list of persons to invite to political fundraisers and to record whether they made political contributions. The complaint alleged that during County compensated hours a County employee communicated with persons involved in political fundraising for the subject and performed fundraising activities during such times.
The investigation into the intimidation allegation uncovered documents copied to a specific County computer by a County compensated employee at the subject's direction concerning public information about citizens who spoke against a matter of legislative concern at an open meeting. The Commission did not find any evidence to support a finding of misuse of the public information against the citizens in question.
Use Of County Personnel And/Or Resources For Private Benefit
The evidence regarding the improper use of County resources allegation included eyewitness statements, statements by the subject asserting that he had given instructions to his County staff that no political campaign work was to be performed on County compensated time or with County resources, and a written statement from the subject stating that he shared in the purchase of a laptop computer for a County employee to use for his political activities because he was aware that "working on campaign activities in the County offices and/or on County time" was an "express prohibition." The evidence also included copies of documents maintained on a County computer during the years 2007 through 2008. Certain of the copied documents contained compilations of names and addresses which were coded in such a way as to indicate whether the addressee made a political contribution to the subject, others were copies of 2007 email communications to a County employee email address during County work hours from non-employees associated with the subject regarding political fund raising activities. The evidence included copies of filings made by the subject on a State maintained filing site.
Analysis of Evidence
The Commission determined that at some point in 2008 a compilation maintained on County computers, called a "Christmas list", was coded by a County compensated employee on County time to denote the receipt of political contributions from the addressees to the subject. The Commission determined that a privately owned laptop computer purchased jointly by the subject and one of his County staff, to be used for scheduling his outside political activities, was not used to compile or code the "Christmas list" in question. The Commission determined that the subject's outside political staff conferred with the subject's County staff on County time on several occasions about updating the "Christmas list" to include contributors. The subject denied having knowledge that his County staff was performing private political activities on County time and stated he instructed that the staff should not do so. The Commission found that coded information from the "Christmas list" was used by the subject as the basis for a campaign finance report filed with the State Election Commission on August 13, 2008.
The evidence included corroborative testimony obtained by a State agency which investigated a claim that County personnel on County paid time were used to stuff hundreds of envelopes the subject had purchased for a private fundraiser. The subject acknowledged that "several" invitations for a fundraiser were altered and prepared for mailing by his County staff in the County office on a one-time basis because of a time deadline.
The Commission found that 2007 email communications regarding a fundraiser were few in number and of a very limited nature. The subject stated that the emails between his political staff and the County employee occurred without his knowledge.
Conclusions Of Fact
The Commission determined that the "Christmas list" was initially compiled as a Christmas card list. The Commission determined that County resources were used to apply private coding to the "Christmas list" rendering it a document compiled on County paid time for the private benefit of the subject. The Commission determined that the coded "Christmas list" was used for the subject's personal political benefit. The Commission was unable to corroborate that the subject was aware or instructed County personnel to code the "Christmas list" on County time.
The Commission determined that the email communications in question were very infrequent. The Commission was unable to corroborate that the subject was aware of the infrequent email communications between his political staff and his County staff regarding a fundraiser.
The Commission found corroborating evidence that a large number of fundraiser envelopes were stuffed by County personnel in the County office. The Commission determined that the subject was aware that County personnel were preparing "several" of his fundraiser invitations in the County office. The Commission determined that County employees in the subject's County office have received administrative directives prohibiting the performance of fundraising or campaign work in the office, even when "off the clock".
A hearing was held and testimony was taken on the allegation of political fundraising activities conducted in a County office.
Standard Of Proof And Commission Voting Requirements
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). New Castle County Code Section 2.04.101G requires that the "votes of at least four (4) members present are required for any action or recommendation of the Commission other than minor procedural matters . . . ." New Castle County Ethics Commission Regulation 2.04.101G states that for "all matters, other than minor procedural matters, there must be at least four affirmative votes for the Commission to take any action or make any recommendation."
The Commission finds that the disputed evidence regarding the subject’s knowledge of the coding of the “Christmas list” and the 2007 email correspondence does not meet the clear and convincing standard of proof.The subject’s admission that he knew that several fundraiser invitations were completed in his County office during work hours coupled with corroborated testimony regarding the stuffing of fundraiser envelopes, meets the standard of clear and convincing evidence that a violation of the Ethics Code occurred. See New Castle County Code Sec. 2.03.104A (prohibition against creating an appearance of using a public office to secure private gain).
Even crediting the subject’s statement that he thought the employee performed the political fundraising activity on uncompensated time in the office, he admitted that he knew “working on campaign activities in the County offices and/or on County time” was an “express prohibition” but failed to prevent that activity from occurring. [emphasis added]
Political fundraising activity conducted by a County employee in the subject’s County office during work hours when “off the clock” is not in accord with administrative directives for that office and creates the appearance to a reasonable member of the public that a County office is being used for private advancement or gain and reduces public confidence in the actions of that public office.
The sanction to be imposed for the violation of Section 2.03.104(A) is a private letter of admonition since the subject did not use County purchased envelopes or postage, the situation was not subsequently repeated, and the subject has stated that he understands that County staff may never be asked or permitted to perform private political activities in County offices.
In light of the facts uncovered in the Commission investigation, the allegations that the subject used his County office for private advancement or gain in relation to the “Christmas list” and the 2007 emails are dismissed.The Commission finds by clear and convincing evidence that the subject created the appearance that he used his County office for private advancement or gain in relation to the activity regarding the preparation of fundraiser invitations.
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION THIS 9th DAY OF NOVEMBER, 2009.