The Commission received an allegation that a County Official created an appearance of impropriety by presiding over two County meetings despite the fact that the official had announced that he was recusing himself from the subject matter of the meetings. The complainant also alleged that the official acted improperly by voting to accept the minutes of one of the meetings.
The public record showed that the official had publicly declared that he had a conflict in the subject matter of the meetings in question several years earlier and had previously recused from official conduct regarding that matter. The public record showed that at the beginning of the first meeting, a public hearing, the official announced that he was recusing because of his earlier announced conflict about the subject of the meeting. During that meeting, the official amplified his recusal by saying that he would not question or vote but would preside over the public hearing. The official subsequently called the witnesses and explained procedures but did not enter the discussion of the subject matter in any other way.
At the second meeting, the official reiterated his recusal, saying he would not debate or participate but would preside and give everyone a chance to speak. In addition, the official voted to approve the minutes of the prior public hearing. He presided over the second meeting but did not enter the discussion. The official abstained from the vote on the subject matter.
The rules under which the official’s board operates provide for a Vice-Chair to act in the absence of the Chair.
NEW CASTLE COUNTY ETHICS CODE and RELEVANT ADVISORY OPINIONS
New Castle County Code Sec. 2.04.103 E states, in pertinent part: “Findings without Investigation after Inquiry: If, after a preliminary inquiry the Commission determines that further investigation is not warranted because a probable violation is demonstrated in the public record, it may eliminate the investigation described in subsection D of this section. ...”
New Castle County Code Section 2.03.104.(A) prohibits conduct which undermines the public confidence in the impartiality of a governmental body with which a County official is associated by creating an appearance that the decisionof action ot the official or governmental body are influenced by factgors other than the merits.
In Final Order 10-02 (October 13, 2010), a County official was sanctioned because he could have delegated his duty to preside over a matter which involved his spouse’s business but did not do so. A recording of the proceeding 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 abstained 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. In finding a violation, the Commission stated:
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. For example, in AO06-08, at p. 4, the Commission held that when a conflict exists, participation in research, preparation, discussion or implementation is barred; in AO06-12, at p. 6, the Commission stated that a conflict requires the individual to recuse from policy making, planning or decision making; in AO 07-11, at pp. 9-10, the Commission stated that an official was barred from participating in decisions about a conflicting matter.
In other published guidance, the Commission has stated “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”. See, Commission brochure on RECUSAL, page 2.
STANDARD OF PROOF
In analyzing whether an appearance of impropriety has occurred, the Commission determines whether the conduct in question “create[s] in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the official’s ability to carry out [official duties] with integrity, impartiality and competence is impaired.” In Re Williams, 701 A.2d 825, 832d (Del. Super. 1997).
The burden of proof regarding such a determination at this stage of the proceedings is the “clear and convincing” standard recited in Code Section 2.04.103H. That standard as 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 §4.3 (2000).
The Commission finds that further investigation is not warranted because a probable violation is demonstrated in the public record. The official also has admitted that he knowingly presided over a matter in which he had declared himself recused because of prior conflict. The official did not have a non-delegable duty to preside over the meeting in question as the rules governing that meeting specifically permit another to act in the place of the presiding officer.
The Commission finds by clear and convincing proof that the conduct of the official in presiding over the two meetings was in violation of the recusal rules and affected public confidence in his impartiality in a matter in which he had a conflict.
The Commission does not find error in the official’ s procedural vote on the minutes of the first meeting as the official was present and could vote on accuracy without creating an appearance of involvement with the merits of the subject of the minutes.
The Commission finds by clear and convincing evidence that the official adversely affected the public confidence in his impartiality by presiding over a matter in which he had a conflict.
A letter of notification is imposed.
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION THIS 14th DAY OF SEPTEMBER 2011.
Thomas P. Collins, Sr., Chairperson
New Castle County Ethics Commission
Unanimous Decision by Commissioners Thomas Collins, Sr., Gerald Turkel, Johanna Bishop, Miguel Gonzalez, James Keeley