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Appearance of Impropriety

Commissioners: Miguel Gonzalez, James Keeley, Eugene McCoy, Gerald Turkel in favor - Commissioner: Vincent White against.


Order Text:

            A complaint alleged that a County official presided over and regulated debate at a meeting during which a matter was advanced by a member of the official's spouse's business. The complainant contended that the official violated the Ethics Code by participating in a matter in which he had a conflict of interest and that he created an appearance of impropriety by failing to recuse himself from participation.
            The Commission reviewed an official copy of a recording of the meeting in question. The recording showed that the official presided over the meeting and that a member of his spouse's business made a presentation. In addition, the official agreed in a writing to the Commission that he "presided over [a matter] where the applicant was represented by a member of my wife's [business]."
            The recording also demonstrated that the official not only presided but also called witnesses, including the presenter, but did not otherwise interject himself in to the matter. The official recused himself from the vote, stating on the record that he was doing so because of the presenter's association with his wife's business. The official told the Commission that neither he nor his wife had a personal interest in the matter handled by the member of the wife's business and that he only recused himself because of appearances.
           The Commission reviewed the published rules governing the conduct of the meeting. The rules in question refer to the Ethics Code in defining prohibitions relating to conflicts of interest. One of those rules states that in the case of an ethical conflict, the presiding officer's duties to conduct the meeting shall be delegated to a specific person. The official admitted in writing that the specified person was available for such delegation at the time of the meeting but that it had not been his practice to transfer his duties as long as he was not required to make a discretionary ruling or participate in discussion.
Ethics Code and Commission Publications
            New Castle County Code Sections 2.03. 102 and 103 A 1, in addressing conflicts of interest, prohibits the exercise of County authority for the personal or private benefit of an official or for the benefit of a member of his immediate family or a business with which he or the family member is associated. New Castle County Code Section 2.01.103A 2 states, in pertinent part, that if matter in which a person has a conflict is one in which the legal and/or statutory responsibility cannot be delegated, a person choosing to abstain from voting shall state the reason for his or her conflict on the record prior to the vote.
            New Castle County Code Section 2.03.104, Code of conduct, prohibits a County official from engaging in conduct which, while not constituting a violation of Section 2.03.103(a)(1) [conflict of interest], undermines the public confidence in the impartiality of a governmental body with which the County official is or has been associated by creating an appearance that the decisions or actions of the County official or governmental body are influenced by the factors other than the merits.
            The Commission transmits all its Orders and Opinions to County Officials and employees by email and in summary form in biennial newsletters and in an annual report. It has also distributed brochures to all County officials regarding the Ethics Code and recusal. In addition, this particular official also was previously directed by the Commission to recuse himself whenever his spouse has a business association in any matter coming before him.
            In various published opinions, the Commission has defined recusal as withdrawing from sponsorship, deliberations, vote, research, preparation, discussion, negotiations, contract formation, policy making, planning, decision making, implementation and prohibiting any private or public discussion of a measure raising a conflict or improper appearance. The Commission's brochure on recusal states at page 2: "As soon as the potential conflict or improper appearance arises or is recognized, the official or employee must cease participation in the matter. . . . Recusing from participation includes ending advice, input, direction, recommendation, or discussion, as well as refraining from vote"

             The burden of proof regarding a determination of whether a violation of the Ethics Code has occurred is the "clear and convincing" standard recited in Code §2.04.103F. The clear and convincing standard has been defined by the Delaware Supreme Court as: "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 § 4.3 (2000)
            The Commission finds that the official did not have a non-delegable duty to preside over the meeting in question as the rules governing that meeting specifically called for delegation in the case of ethical conflict. The official admits that he knowingly presided over a matter involving an application by a client of his wife's business. The Commission finds that the official violated its rules on recusal in the conduct of presiding over a meeting in which a member of his wife's business represented an applicant.
            The Commission finds by clear and convincing evidence that the official adversely affected the public confidence in his impartiality by presiding over a matter involving his wife's business.
            The Commission notes the official's partial recusal by abstaining from vote and his unprompted advance agreement to follow the rules defined by the Commission when his wife's business is involved. Therefore, letter of notification is the sanction imposed.
Thomas P. Collins, Sr., Chairperson
New Castle County Ethics Commission
Decision in favor:  Miguel Gonzalez, James Keeley, Eugene McCoy, Gerald Turkel
Decision against:  Vincent White



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