An email was received in March 2013 containing detailed accusations about a County employee who was alleged to be using his County position to benefit a private contractor. The email described the employee’s efforts to coerce certain named private nonprofit entities to hire the contractor and to distort the bidding process to obtain jobs for the contractor. The complaint was detailed and provided information which could be authenticated by an investigation
The complainant ignored numerous requests to sign the complaint under penalty of perjury. On April 10, 2013, the Commission determined that it would open an investigation on its own authority pursuant to New Castle County Code Section 2.04.103A .1
Applicable Ethics Code Provisions
New Castle County Code Section 2.03.103 B. Restrictions on representing another’s interest before the County, prohibits a County official or employee from representing or assisting any private party in any matter which is before his or her Department, in variance from the manner described for his County position.2 In this case, the allegation is that the subject was improperly assisting the contractor in a manner outside the scope of his position in order to financially benefit the contractor under a County program administered by the employee’s Department.
New Castle County Code Section 2.03.104A, Code of Conduct, prohibits an employee from conducting himself in a manner which makes a reasonable observer believe that the administration of County services by the employee or his Department are not on a fair and impartial basis.3
New Castle County Code Section 2.03.104D, Code of Conduct, prohibits an employee from using his or her public office to secure unwarranted private advancement or gain.4
The investigator contacted all the parties named in the complaint as persons who allegedly were pressured by the subject to favor the contractor in the bidding or billing process. None of those parties substantiated the charges and most had only favorable comments about the subject’s diligence and fairness. Although initially agreeing to an interview, the original complainant failed to respond to the investigator’s nine requests to meet with him. The subject and his superior were interviewed. The subject denied all the complaint allegations. The investigator drew the conclusion that the allegations made by the initial complainant were probably the result of personal conflict and professional jealousy.
Standard of Proof
The burden of proof following an investigation is “more probable than not”.
The complaint was not substantiated in any way by the investigation.
The Commission finds no probable cause to believe that a violation of the Ethics Code occurred and, therefore, the complaint is DISMISSED.
BY AND FOR THE NEW CASTLE COUNTY ETHICS COMMISSION THIS 11TH DAY OF SEPTEMBER, 2013.
Johanna P. Bishop, Chairperson
New Castle County Ethics Commission
Unanimous Decision by Commissioners Johanna P. Bishop, Paula Jenkins-Massie, Christopher Simon, Gerald Turkel
1New Castle County Code Section 2.04.103, Investigations, in pertinent part:
A. Complaint . . . Upon receipt of a sworn complaint signed under penalty of perjury by any person or upon its own motion, the Commission shall provide notice of the complaint to the subject and permit a fourteen (14) day period for the subject to respond, except when, in the Commission’s discretion, such notice may jeopardize the investigative process. . . .
In this case, the Commission did not provide a fourteen day notice to the subject of the complaint because certain of the allegations, if proven, would have constituted violation of the criminal law and the Commission felt that notice would jeopardize a potential criminal investigation. When the Commission received information which made a potential criminal violation unlikely, it provided notice to the subject.
2New Castle County Code Section 2.03.103 B. Restrictions on representing another's interest before the County.
1. No County employee or County official may represent or otherwise assist any private enterprise with respect to any matter before the County Department with which the employee or official is associated by employment or appointment.
2. No county official may represent or otherwise assist any private enterprise with respect to any matter before the County. This prohibition is to be considered personal to the County official and is not, for purposes of the New Castle County Ethics Code only, deemed to impact other members of a firm, business, or other employer by which the County official is employed.
3. This subsection shall not preclude any County employee or County official from appearing before the County or otherwise assisting any private enterprise with respect to any matter in the exercise of his or her official duties.
3New Castle County Code Section 2.03.104, Code of conduct, in pertinent part:
A. No County employee or County official shall engage in conduct which, while not constituting a violation of Subsection 2.03.103.A.1., 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.
. . .
4New Castle County Code Section 2.03.104, Code of conduct, in pertinent part:
. . .
D. No County employee or County official shall use such public office to secure unwarranted privileges, private advancement or gain.
. . .
5New Castle County Code Section 2.04.103, Investigations, in pertinent part:
. . .
G. Probable Cause Report. The Commission, or one (1) or more of its members appointed by the Chair when the Commission is at its full complement without vacancies, upon completion of the inquiry described in Subsection E or investigation described in Subsection D, shall issue a confidential Probable Cause Report to the subject of the inquiry or investigation setting forth the pertinent findings of fact supporting a conclusion of violation . . .